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ACUITY 


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A  NEW 


ABRIDGMENT   OF    THE    LAW. 


BY  MATTHEW  BACON, 

OF  THE  MIDDLE  TEMPLE,  ESQ. 
•  WITH 

LARGE  ADDITIONS  AND  CORRECTIONS, 

BY  SIR  HENRY  GWYLLIM, 

AND 

CHARLES  EDWARD  DODD,  ESQ. 

AND    WITH 

THE  NOTES  AND  REFERENCES  MADE  TO  THE  EDITION  PUBLISHED 

IN  1809, 

BY  BIRD  WILSON,  ESQ. 

TO  WHICH  ARE  ADDED 

NOTES  AND  REFERENCES  TO  AMERICAN  AND 
ENGLISH  LAW  AND  DECISIONS, 

BY  JOHN  BOUVIER. 

VOL.   X. 


PHILADELPHIA: 
T.  &  J.  W.  JOHNSON  &  CO.,  LAW  BOOKSELLERS, 

NO.    197    CHESTNUT    STREET. 

1860. 


/ 

3/3  52a. 
l$i>0 
M,  tO 


Entered  according  to  Act  of  Congress,  in  the  year  1842,  by 

McCAKTY  &  DAVIS, 

in  the  Clerk's  Offico  of  the  District  Court,  of  the  Eastern  District  of  Pennsylvania, 

Recorded  according  to  Act  of  Congress,  in  tho  year  1S51,  by 

T.  &  J.  W.  JOHNSON, 

in  tho  Clerk's  Office  of  tho  District  Court,  of  the  Eastern  District  of  Pennsylvania. 


X.    B.    MF.*HH,  \  CER. 


TABLE    OF    TITLES. 


J'ythes  - 

L'niversities 

Uses  and  Trusts 

Usury 

Verdict 

visne  or  Venue 


Pag* 

1'a^e 

5 

Void  and  Voidable 

-    374 

101 

Wager  of  Law  - 

38? 

-     Ill 

Warranty       - 

394 

264 

Waste        - 

4-20 

-     306 

Wills  and  Testaments 

•     478 

361 

General  Index 

601 

TYTHES/ 


The  word  Tithe  is  derived  from  the  Saxon  word  Teoba,  which  signifies 
the  tenth  part  of  a  thing. 

Of  every  thing,  of  which  tithe  is  due  of  common  right,  tithe  is  always 
the  tenth  part  of  the  tiling. 

But  of  every  thing,  of  which  tithe  is  only  due  by  custom,  more  or  less 
than  the  tenth  part  of  the  thing  may  be  due  for  tithe. 

[For  where  custom  only  subjects  to  tithe,  custom  must  determine  the 
proportion. 

Tithes,  in  their  proper  and  original  nature,  are  a  spiritual  and  incorporeal 
inheritance  :  spiritual,  from  the  uses  to  which  they  are  consecrated;  incor- 
poreal, from  the  mode  of  their  existence 

There  is  no  doubt  that  tithes  were  originally  a  mere  ecclesiastical  re- 
venue ;(a)  ecclesiastical  persons  only  having  capacity  to  take  them  ;(&) 
and  ecclesiastical  courts  only  having  power  to  take  cognisance  of  them. 
They  were  considered,  not  as  any  secular  duty,(c)  or  as  issuing  out  of  the 
land,  but  as  collateral  to  the  estate  of  the  land,  and  were  paid,  not  in  re- 
spect of  the  land,(rf)  but  in  respect  of  the  persons  of  the  laity,  in  return 
for  the  benefit  they  derived  frcm  the  ministry  and  care  of  their  spiritual 
pastors.  They  could  not  pass  by  copy  of  court- roll, (c)  because  things 
spiritual  could  not  lie  in  tenure,  or  be  considered  as  parcel  of  a  manor  : 
unity  of  possessicn(g-)  could  not  extinguish  them,  because  the  spiritual 
nature  could  not  be  merged  or  extinguished  ;  in  other  words,  could  not 
coalesce  or  incorporate  with  that  which  was  material  and  temporal :  nor 
could  a  release  of  all  demands  in  lands  operate  as  a  discharge  of  them  ;(h) 
for  as  they  would  not  pass  under  the  denomination  of  land,  neither  would 
they  be  elfected  by  a  release  of  all  claims  arising  out  of  lands. 

(a)  Moor,  530;  Hob.  296.  (b)  9  Co.  43  b;  5  Co.  Cawdrie's  case,  (c)  1  Leon.  300. 
(d)  Day,  5  b,  6  a.    (e)  Cro.  Eliz.  293,  814.    (g)  Dav.  6  a.    (A)  1  Leon.  300. 

Tithes,  again,  in  their  essence,  have  nothing  substantial  or  permanent : 
they  consist  merely  injure,  are  merely  a  right.  An  estate  in  tithes  is  no  more 
than  a  title  to  a  share  or  portion  of  the  produce  after  it  shall  have  been  sepa- 
rated from  the  general  mass:  before  severance  it  is  wholly  uncertain  what 
the  amount  of  that  share  or  portion  may  be;  nay  more,  its  very  existence 
is  precarious;  this,  like  its  quantity,  depending  upon  the  accidents  of  cli- 
mate, season,  soil,  cultivation,  and  the  will  and  caprice  of  the  several 
owners  or  possessors.  If  the  ground  be  not  sown,  if  the  farms  be  nol 
stocked,  if  the  fruits  be  not  gathered,  no  tithe  can  possibly  arise.  For  tithe 
is  payable,  as  we  have  said  before,  not  in  respect  of  the  land,  but  oi  die 
person :  it  is  not  an  estate  in  the  land,  but  a  right  to  a  determinate  propor- 
tion of  the  fruits,  with  all  the  industry  and  expense  that  have  been  be- 
stowed in  bringing  them  forward  and  collecting  them.  Tithe,  then,  in 
itself,  is  not  an  object  of  our  external  senses:  it  is  neither  visible,  nor 
tangible  ;  its  produce,  indeed,  may  be  seen  and  felt,  but  it  exists  itself  only 

[  ■■  The  Editor  was  induced  to  transpose  this  head,  in  expectation  of  being  able  tc 
make  some  valuable  additions  to  it.  1 

A2  5 


6  TYTIIES. 

Tithes. 

in  the  mind's  eye,  and  in  contemplation  of  law.  It  follows,  therefore,  that 
it  is  incorporeal:  for  the  law  ascribes  corporeity  only  to  those  objects 
which  are  substantial  and  permanent.  From  their  incorporeity  tithes  are 
said  to  li"  in  grant,  and  not  in  livery;  that  is,  they  could  not  pass  from 
one  man  to  another  by  livery  of  seisin,  the  ancient  mode  of  transfer,  nor 
could  actual  possession  be  given  of  them  ;  but  the  property  in  them  could 
only  In-  transferred  by  deed.  In  consequence  of  their  incorporeity  it  was 
doubted,  whether  a  rent  could  be  reserved  upon  them  ;  for  being  incapable 
of  locality,  there  was  no  place  where  a  distress  could  be  taken  of  them. 
And  to  obviate  this  doubt  a  statute  was  passed,  which  empowers  ecclesi- 
astical persons  to  grant  leases  for  lives  or  years  of  their  incorporeal  heredita- 
ment 3.  Of  tlie  king's  right  to  reserve  a  rent  on  a  demise  of  tithes  no  doubt 
indeed  was  ever  entertained;  because  by  the  prerogative  the  king  had  a 
right  to  distrain  upon  any  lands  in  the  possession  of  his  lessee. 
-       .  I  lomm.,  •">  G.  ;_;,  c.  7. 

But  the  revolution  which  took  place  in  our  ecclesiastical  polity  in  the 
time  of  i  tenry  the  Eighth  has  almost  entirely  changed  the  nature  of  this 
of  property;  and  there  now  seems  to  be  scarcely  any  difference 
between  an  inheritance  in  lands  and  an  inheritance  in  tithes.     When  the 
benefices  which  the  regular  clergy  had  appropriated  to  themselves  fell, 
upon  the  dissolution  of  the  monasteries,  into  the  hands  of  the  king,  he  was 
prompted  by  his  profuseness,  and  induced  by  policy,  to  make  grants  of 
them  to  lay-persons.     But  in  order  that  the  tithes  might  answer  the  pur- 
poses of  civil  life,  and  accommodate  themselves  to  the  exigencies  of  their 
new  proprietors,  it  became  necessaryto  secularize  them, and  to  endue  them 
with  all  the  qualities  of  real  property.     For  this  purpose  an  act  of  parlia- 
ment was  passed  ;  so  that  tithes  in  the  hands  of  a  lay-person  may  now  be 
treated  like  any  other  kind  of  property:  they  may  be  put  in  view  in  an 
e  :  they  are  demandable  in  a  praecipe  quod  reddat :  they  are  subject  to 
dower:   fines  may  be  levied,  and  recoveries  may  be  suffered  of  them: 
ejectments  may  be  brought  for  them  :  in  short,  they  have  all  the  properties 
and  all  the  incidents  of  a-  lay-fee,  except  that  they  lie  in  grant,  and  not  in 
ry  :  a  distinction  which  now  marks  no  great  difference,  since  the  statute 
frauds  allows  no  interest  of  any  permanency  to  pass  even  in  real  pro- 
the  grant  lie  attested  by  some  written  instrument. 
!.  3,  ■-.  7.     B;  3  Wile.  30.] 
ler  this  title  it  will  be  proper  to  show, 
'  M'  u  bat  Tlni;--  Tithe  is  in  general  due. 

e  liable  to  the  Payment  of  a  jirrsunal  Tithe. 
Of  what  Things  a  predial  Tithe  is  due. 
1.  Of  Agistment. 
•J.  Of  Corn. 

3.  Of  Hay. 
I.  Of  Wood. 

1 11   '  •:  v  tiat  Things  a  mixed  Tithe  is  due. 

2   Oj        E   is  or  Voting  of  a  Bird  or  Until. 

4.  ' 

Po  whom  '  paid. 


TYTHES.  7 

(A)  Of  -what  Things  Tithes  are  in  general  due. 

(F)  To  whom  parochial  Tithes  are  to  be  paid. 

(G)  To  whom  extra-parochial  Tithes  are  to  be  paid. 

(II)  Of  the  Right  to  a  Portion  of  Tithes  in  a  Parish. 

(I)  By  whom  Tithe  is  to  be  paid. 

(K)  What  Tithea  are  to  be  deemed  small  Tithes. 

(L)  How  far  the  Custom  of  a  Parish  is  to  be  regarded  in  the  setting  out  of 

(M)  Of  the  Time  and  Manner  of  paying  personal  Tithes,  where  there  is  no  I 
in  a  Parish. 

(N)  Of  the  Time  and  Manner  of  setting  out  predial  Tithes,  where  there  is  no  Cus- 
tom in  a  Parish. 

(0)  Of  the  Time  and  Manner  of  setting  out  or  paying  mixed  Tithes,  where  there  is 
no  Custom  in  a  Parish. 

(P)  Of  the  Time  and  Manner  of  paying  Tithes  due  by  Custom. 

(Q)  In  what  Cases  the  Payment  of  Tithes  may  be  suspended. 

1.  Of  the  Produce  of  Lands  in  the  King's  Hands. 

2.  Of  the  Produce  of  Lands  which  have  been  barren. 

3.  Of  the  Produce  of  Glebe  Lands. 

4.  Of  Discharge  of  Payment  of  Tillies  by  Composition  real. 
(R)  Of  a  Modus  decimandi. 

1.  In  general. 

2.  Of  the  Certainty  required  in  a  Modus. 

3.  Of  a  Modus  ichich  amounts  to  a  Prescription  in  non  decimando. 

4.  Of  a  Modus  tohich  has  not  been  constantly  paid. 

5.  Of  a  leaping  Modus. 

6.  Of  a  Modus  which  is  too  rank. 

7.  Of  a  Modus  which  is  liable  to  fraud. 

8.  Of  a  Modus  for  such  persons  as  live  out  of  the  Parish. 

9.  Of  the  extent  of  a  Modus. 

(S)  Of  a  Prescription  in  Non  decimando. 

(T)  Of  a  Discharge  of  Tithes  by  Grant. 

(U)  Of  a  Discharge  of  Tithes  by  Bull. 

(W)  Of  a  Discharge  of  the  Payment  of  Tithes  by  Order. 

(X)  Of  a  Discharge  of  the  Payment  of  Tithes  by  Unity  of  Possession. 

(Y)  Of  Agreements  and  Leases  concerning  Tithes. 

(Z)  Of  a  Suit  in  a  Spiritual  Court  for  Subtraction  of  Tithe. 

(Aa)  In  what  Cases  a  Prohibition  lies  to  a  Suit  in  a  Spiritual  Court  for  Subtraction 

of  Tithe. 
(Bb)  Of  a  Suit  in  a  Court  of  Equity  for  Subtraction  of  Tithe. 
(Cc)  Of  a  Suit  in  a  Court  of  Equity  to  establish  a  Modus,  or  a  customary  Manner 

of  setting  out  Tithe. 
(Dd)  Of  an  Action  upon  the  Statute  against  Subtraction  of  Tithe. 
(Ee)  Of  recovering  in  a  summary  Way  the  Value  of  small  Tithes  subtracted. 
(Ff )  Of  recovering  Tithe  due  from  Quakers. 
(Gg)  What  Remedy  the  Occupier  has,  when  the  Person  entitled  to  the  Tithe  Bet  out 

does  not  fetch  it  away  in  a  reasonable  Time. 

(A)  Of  what  Things  Tithes  are  in  general  due. 

Titties  of  some  things  are  due  of  common  right,  of  others  by  custom. 
Tithe  is  not  clue  of  common  right  of  any  fruit  of  the  earth  which  does 
not  renew  a-nnually. 


8  TYTHES. 

(A)  Of  what  Things  Tithes  are  in  general  due. 

Tithe,  which  arises  from  a  fruit  of  the  earth,  can  never  be  part  of  the 
land  from  which  it  arises,  but  must  always  be  collateral  thereto. 
11  Rep.  13  ;  Cro.  Eliz.  161,  216;  Cro.  Ja.  452. 

Nay,  tithe  is  so  collateral  to  the  land  from  which  it  arises,  that  if  a 
lease  be  made  of  the  glebe  belonging  to  a  rectory,  with  all  the  profits  and 
advantages  thereof,  and  there  be  a  covenant,  that  the  rent  to  be  paid 
shall  be  in  full  satisfaction  of  every  kind  of  exaction  and  demand  belong- 
ing to  the  rectory  ;  yet,  if  the  glebe  be  not  expressly  discharged  of  tithe, 
the  lessee  shall  be  liable  to  the  payment  of  tithe  for  the  glebe. 

11  Rep.  13,  Priddle  v.  Napier;  Cro.  Eliz.  161.     \\See post,  head  (Q).|| 

Tithe  is  not  due  of  common  right  of  the  produce  of  a  mine  or  quarry ; 
because  such  produce  does  not  renew  annually,  but  is  the  substance  of 
the  earth,  and  has  perhaps  been  so  for  many  years. 

Fitz.  N.  B.  53 ;  Bro.  Dism.  pi.  18 ;  2  Inst.  651 ;  1  Roll.  Abr.  637 ;  Cro.  Eliz.  277. 

But  tithe  may  be  due  by  custom  of  the  produce  of  a  mine  or  quarry. 
2  Vern.  46,  Buxton  v.  Hutchinson ;  ||Gwill.  Tithe  Ca.  535. || 
Tithe  is  not  due  of  common  right  of  lime ;  the  chalk,  of  which  it  is 
made,  being  part  of  the  soil. 

1  Roll.  Abr.  637,  pi.  5. 

Tithe  is  not  due  of  common  right  of  bricks ;  because  these  are  made 
of  earth. 

2  Mod.  77,  Stoutfield's  case. 

Tithe  is  not  due  of  common  right  of  turf  or  gravel ;  because  both 
these  are  part  of  the  soil. 
1  Mod.  35. 

It  has  been  h olden,  that  tithe  is  not  due  of  common  right  of  salt ;  be- 
cause this  is  not  a  fruit  of  the  earth. 
1  Roll.  Abr.  642,  S.  pi.  8. 

But  every  one  of  these  things,  and  all  things  of  the  like  kind,  may  by 
custom  be  liable  to  the  payment  of  tithe. 

1  Roll.  Abr.  642,  S.  pi.  7,  pi.  8. 

Tithe  is  not  due  of  common  right  of  a  house;  because  tithe  is  only 
due  of  common  right  of  such  things  as  renew  annually. 
11  Rep.  16,  Graunt's  case. 

But  houses  in  London  are  by  a  decree,(«)  which  was  confirmed  by  an 
act  of  parliament,  made  Jiable  to  the  payment  of  tithe. 

2  Inst.  659  ;  37  E.  8,  c.  12.  \\(a)  This  decree,  dated  24th  February,  1545-6,  ordered, 
that  the  inhabitants  of  London  should  pay  tithes  to  the  parsons,  vicars,  and  curates,  at 
the  rate  of  Is.  !]</.  fur  every  10.9.  rent,  and  of  2s.  9d.  fur  every  20.s\  rent  by  tbe  year. 
The  statute  ;;7  II.  8,  c.  12,  enacted,  that  the  decree,  when  concluded,  "  and  enrolled  in 
tlie  King's  High  Court  of  Chancery  of  record,  should  stand,  remain,  and  be  as  an  act 
of  parliament."  After  repeated  searches,  no  enrolment  lias  ever  been  discovered.  It 
appears  from  the  authentic  edition  of  the  statutes,  published  by  the  Commissioners 
of  Public  Records,  that  the  decree  is  not  inserted  in  the  earliest  printed  copies  of  the 
Statutes  of  the  year;  that  it  does  not  form  part  of  the  art  entered  on  the  enrolment  of 

'i Mite  in  Chancery,  nor  is  it  enrolled  in  Chancery,  nor  annexed  to  the  original  act 
preserved  in  the  Parliament-office.  From  a  copy  of  the  endorsement  on  thedecreeen- 
tered  in  the  Register  Book  of  the  Bishop  of  London  in  St.  Paul's  cathedral,  it  appears 

the  decree,  signed  and  sealed,  was  delivered,  the  ,\ny  alter  the  date,  to  Bonner 
Bishop  of  London,  by  the  Archbishop,  &c,  \\  hose  names  are  signed  thereto ;  and  that 
the  bishop  delivered  it  to  his  registrar  for  safe  custody.  The  original  instrument  has 
not  been  found.     The  binding  force  of  the  decree  under  the  statute  depending  on  its 


TYTIIES.  9 

(B)  Who  are  liable  to  the  Payment  of  a  personal  Tithe. 

enrolment  in  Chancery,  and  no  enrolment  having  been  found,  the  question  has  been 
mueli  agitated,  whether  an  enrolment  can,  at  this  distance  of  time,  and  after  acquies- 
cence in  the  decree  to  a  great  extent,  be  presumed.  In  llallam  v.  Adams,  23  Car.  1, 
K.  B.  Roll.  1834,  in  an  action  for  assault  and  false  imprisonment,  where  the  defend- 
ant justified  under  the  decree,  and  the  plaintiff  replied  the  non-enrolment,  on  which 
issue  was  joined,  the  jury  appear  to  have  found  that  fchedecreewas  enrolled  in  Chan- 
cery. A  like  verdict  is  said  to  have  been  found  in  the  Exchequer,  (Branston  v. 
Cook,  1657,)  but  the  record  has  not  been  found.  In  Anon.  1  Vent.  R.  257,  the  court 
are  reported  to  have  said,  "  If  a  record  be  lost,  it  may  be  proved  to  a  jury  by  testimony  ; 
as  the  decree  in  Henry  the  Eighth's  time  for  tithes  in  London  is  lost,  "yet  it  has  been 
often  allowed  that  there  was  one."  In  Macdougall  v.  Purrier,  the  plaintiff  by  his  bill 
claimed  tithe  of  the  defendant,  an  inhabitant  of  St.  Helen's,  Bishop-ate  street,  on  the 
footing  of  the  act  of  parliament  and  decree;  and  on  the  suit  coming  on  for  hearing, 
Sir  John  Leach,  M.  R.,  directed  an  issue,  whether  the  decree  was  duly  enrolled  :  add- 
ing, that  if  he  were  the  judge,  he  should  direct  the  jury  to  presume  an  enrolment. 
An  appeal  to  the  House  of  Lords  from  this  decree  is  now  pending.  See  2  Eag.  on 
Tithes,  462 :  and  see  M'Dougall  v.  Young,  2  Carr.  &  Pa.  Ca.  278  ;  Owen  v.  Nodin, 
M'Clel.  239  ;  3  Eag.  &  Youn.  1149;  Tyrwhitt's  "Argument  on  the  non-enrolment  of 
the  decree."  (1823.')  As  the  statute  and  decree  create  a  special  jurisdiction  before  the 
Lord  Mayor  for  recovery  of  the  tithes  under  the  decree,  it  is  doubtful  whether  an 
action  at  "common  law  can  be  maintained  for  them.  Meadhouse  v.  Taylor,  Nov,  130 ; 
Eag.  &  Youn.  172  ;  M'Dougall  v.  Young,  2  Carr.  &  Pa.  Ca.  278.  But  the  jurisdiction 
of  the  Courts  of  Chancery  and  Exchequer  is  not  excluded  by  the  act.  Kynaston  v. 
Miller,  Dick.  773  :  2  Ves.  J.  567  ;  Gwill.  903  ;  Eag.  &  Youn.  196 ;  Ivatt  v.  Warren, 
3  Ea£.  &  Youn.  1203 :  Gwill.  1054 ;  Warden  of  St.  Paul's  v.  Crickett,  2  Yes.  J.  303  ; 
Eag.°&  Youn.  417  ;  Gwill.  1425.  For  the  decisions  in  the  Court  of  Chancery  and 
Exchequer  as  to  the  construction  of  the  act  and  decree,  see  Toller  on  Tithes,  ch.  9  ; 
Mirehouse  on  Tithes,  p.  2,  c.  7  ;  Eagle  on  Tithes,  c.  17.  And  as  to  the  provision  for 
the  clergy  in  those  parishes  where  the  churches  were  destroyed  by  the  fire  of  London, 
see  44  G."  3,  c.  89.  || 

And  before  this  decree  many  houses  in  London  were  by  custom  liable 
to  the  payment  of  tithe,  the  quantum  to  be  paid  being  thereby  only  set- 
tled as  to  such  houses  for  which  there  was  no  customary  payment. 

2  Inst.  659  ;  Hard.  116  ;  Gilb.  Eq.  Rep.  193,  194. 

There  is  in  most  ancient  cities  and  boroughs  a  custom  to  pay  tithe  of 
houses ;  without  which  there  would  not  be  in  many  parishes  a  proper 
maintenance  for  the  clergy. 

11  Rep.  16,  Graunt's  case ;  Bunb.  102. 

It  was  holden  by  three  barons  of  the  Exchequer,  Price,  Montague, 
and  Page,  contrary  to  the  opinion  of  Bury,  Chief  Baron,  that  two  tithes 
may  be  due  of  the  same  thing,  one  of  common  right,  the  other  by  custom. 

Bunb.  43,  Earl  of  Scarborough  v.  Hunter. 

(B)  Who  are  liable  to  the  Payment  of  a  personal  Tithe. 

Such  tithe  as  arises  from  the  profit  of  a  man's  personal  labour,  in  the 
exercise  of  an  art,  trade,  or  employment,  is  called  a  personal  tithe. 
2  Inst.  049. 

A  personal  tithe  is  only  to  be  paid  of  the  clear  gain  which  arises  from 
the  personal  labour  of  a  man,  after  deducting  all  charge  and  expense, 
according  to  the  estate,  condition,  or  degree  of  the  man. 

2  Inst.  G2,  658. 

By  the  2  &  3  Ed.  6,  c.  13,  §17,  common  day-labourers  are  exempted 
from  the  payment  of  a  personal  tithe. 

||  By  2  &  3  Eel.  6,  c.  13,  §7,  it  is  enacted,  that  all  and  every  person 
exercising  merchandises,  bargaining  and  sellinir,  clothing,  handicraft,  or 
other  art  or  faculty,  being  such  kind  of  persons  and  in  such  places  as 
heretofore  within  these  forty  years  have  accustomably  used  to  pay  such 

Vol.  X.— 2 


10  TYTHES. 

(B)  Who  are  liable  to  the  Payment  of  a  personal  Tithe. 

personal  tithes,  or  of  right  ought  to  pay,  (other  than  such  as  have  been 
common  day-labourers,)  shall  yearly,  at  or  before  the  feast  of  Easter,  pay 
for  his  personal  tithes  the  tenth  part  of  his  clear  gains ;  his  charges  and 
expenses,  according  to  his  estate,  condition,  and  degree,  to  be  thereon 
abated,  allowed,  and  deducted. 

And  by  §  8.  Provided  always,  that  in  all  such  places  where  handi- 
craftsmen have  used  to  pay  their  tithes  within  these  forty  years,  the  same 
custom  of  payment  of  tithes  is  to  be  observed  and  continue.|| 

Servants  in  husbandry  are  not  liable  to  the  payment  of  a  personal 
tithe  ;  for  by  their  labour  the  tithes  of  many  things  are  increased. 

1  Roll.  Abr.  046,  pi.  1. 

A  miller  is  liable  to  the  payment  of  a  personal  tithe. 

2  Inst.  621 ;  1  Roll.  Abr.  641,  pi.  19;  Cro.  Ja.  523. 

And  it  seems  to  have  been  formerly  holden,  that  the  occupier  of  a  corn- 
mill,  besides  being  liable  to  the  payment  of  a  personal  tithe,  is  also  liable 
to  pay,  as  a  predial  tithe,  the  tenth  part  of  his  toll. 

2  Roll.  Rep.  84;  Show.  281 ;  Brownl.  32. 

It  is,  however,  now  settled,  by  a  decree  of  the  House  of  Lords,  upon 
an  appeal  from  a  decree  of  the  Court  of  Exchequer,  that  only  a  personal 
tithe  is  due  from  the  occupier  of  a  corn-mill. 

1  Eq.  Cas.  Abr.  366,  Newte  v.  Chamberlain ;  1  Br.  P.  C.  157,  S.  C. ;  [2  P.  Wms. 
463,  S.  C.  cited.     Vide  Dodson  v.  Oliver,  Bunb.  73. 

A  mill,  it  is  now  clearly  settled,  is  to  be  considered  as  a  predial  tithe, 
so  far  as  respects  its  locality  and  the  person  to  whom  it  is  payable  ;  but 
in  the  mode  of  payment  it  is  to  be  treated  as  a  personal  tithe.  The  con- 
sequence of  its  being  treated  as  a  personal  tithe  in  the  mode  of  payment 
is,  that  only  a  tenth  part  of  the  clear  profits,  after  deducting  the  rent 
ami  other  incidental  expenses,  is  due  for  it.  Where  no  conventionary 
rent  is  paid  for  it,  as  where  it  is  not  in  lease,  in  that  case  an  annual  value 
or  rent  must  be  set  upon  it  by  the  officer  of  the  court. 

Hall  v.  Macket,  E.  37  G.  3,  in  Scacc. ;  ||and  see  Filewood  v.  Kemp,  per  Sir  W. 
Scott,  1  Ilagg.  R.  494.  And  newly  erected  mills,  for  which  no  tithes  have  been  paid 
for  forty  years,  are  not  within  the  seventh  section  of  2  &  3  Edw.  6,  applying  to  per- 
sonal tithes.  Newte  v.  Chamberlayne,  Dodd's  MS.  204;  1  Bro.  P.  C.  107;  Gwill. 
59G;  1  Eq.  Ca.  Ab.  366;  2  Ibid.  731. || 

The  occupier  of  a  new-erected  mill  is  liable  to  the  payment  of  a  per- 
sonal tithe,  although  the  mill  be  erected  upon  land  discharged  of  tithes. 

Cro.  -I  ■..  129. 

It  is  Baid  in  one  book,  that  the  occupier  of  an  ancient  mill  is  not  liable 
to  the  payment  of  a  personal  tithe;  but  that  the  occupier  of  a  new  mill 
is,  by  the  9  Ed.  2,  st.  1,  c.  5,  made  liable  thereto. 

Mar.  \~>,  pi.  36. 

This  seems  to  be  a  mistake,  for  that  statute  only  provides  that  new- 
erected  mills  shall  be  liable  to  the  payment  of  tithe;  but  as  nothing  is 
therein  said  concerning  ancient  mills,  there  can  be  no  doubt  that  such 
ancienl  mills,  as  before  the  making  of  that  statute  were  liable  to  the  pay- 
ment of  a  personal  tithe,  continued  afterwards  t<>  be  liable  thereto. 

12  Mod.  243,  Hart  v.  Hale;  3  Bulstr.  212.  ||  Scd  vide  Gwill.  Ca.  644,  871,  974, 
1022,  130,  i.  by  which  cases  it  seems  settled  thattfor  mills,  as  ancient  as  the 

Itatute  articuli  cleri,  9  Edw.  2,  st.  1,  c.  5,  no  tithes  arc  payable.|| 

|j  Where  the  owner  of  an  ancient  mill,  under  the  same  roof,  erects  two 


TYTHES.  11 

(C)  Of  what  Things  a  predial  Tithe  is  due. 

new  wheels,  they  are  to  be  considered  as  two  new  mills ;  and,  on  a  bill 
being  brought  for  the  tithe,  he  cannot  cover  them  with  the  same  modus. 
Talbot  v.  May,  3  Atkins,  17. 

And  where  it  appeared  that  an  ancient  corn  mill  had  been  rebuilt,  and 
two  pair  of  new  stones  added,  Sir  William  Grant,  M.  11.,  decreed  an  ac- 
count aa  to  the  two  pair  of  new  stones,  observing  that  the  cases  on  the 
subject  were  not  very  easily  reconcilable. 

Manby  v.  Taylor,  3  Ves.  &  B.  71 ;  and  see  9  Price,  249  ;  Gwill.  Ca.  1720  ;  1  Ea<de 
on  Tithe,  390. 

Mills  used  for  the  purpose  of  any  trade  or  manufacture  are  not  charge- 
able with  tithe ;  as  fulling  mills,  paper  mills,  lead  mills,  &c,  unless  by 
special  custom.  And  no  tithe  is  payable  for  corn  mills  where  they  are 
used,  not  for  grinding  corn  of  others  for  hire,  but  for  grinding  the  miller's 
own  corn,  for  the  purposes  of  sale  in  the  business  of  a  mealman  or 
baker  ;  and  it  is  the  same  as  to  corn  ground  by  a  distiller  for  the  purpose 
of  distillation. 

Dandridge  v.  Johnson,  2  Roll.  R.  84 ;  Cro.  Ja.  523  ;  Wilson  v.  Mason,  Gwill. 
Ca.  974 ;  2  Eagle  &  Y.  240 ;  Browne  v.  Woolsey,  Exch.  1826 ;  1  Eagle  on  Tithe, 
401. 

Accordingly,  the  tithe  owner  has  no  right  to  a  discovery  by  the  miller 
of  the  price  at  which  he  has  sold  meal  ground  by  him ;  but  he  has  a 
right  to  have  a  discovery  of  the  quantity. 

Chapman  v.  Pilcher,  Wightw.  15 ;  Gwill.  1653. 

If  the  man  who  has  let  a  ship  to  a  fisherman  receive,  for  the  use  of 
his  ship,  a  parcel  of  the  fish  which  are  caught,  the  fisherman  is  not  liable 
to  the  payment  of  a  personal  tithe  for  these  fish,  because  they  are  no 
part  of  his  gain. 

1  Roll.  Abr.  656,  N.  pi.  2. 

||  By  2  &  3  Ed.  6,  c.  13,  §  11,  it  is  provided,  that  this  act  shall  not  ex- 
tend to  any  parish  which  stands  upon  and  towards  the  sea  coasts,  the 
commodities  and  occupying  whereof  consisteth  chiefly  in  fishing,  and 
have,  by  reason  thereof,  used  to  satisfy  their  tithes  by  fish;  but  that  all 
and  every  such  parish  and  parishes  shall  hereafter  pay  their  tithes 
according  to  the  laudable  customs,  as  they  have  heretofore  of  ancient 
time,  within  these  forty  years,  used  and  accustomed. 

See  Eagle  on  Tithe,  ch.  7,  §  2. 

If  a  man  purchase  a  house  for  three  hundred  pounds,  and  after  sell  it 
for  five  hundred,  no  personal  tithe  is  due,  for  the  personal  labour  bears 
no  proportion  in  this  case  to  the  profit. 

1  RoU.  Abr.  056,  N.  pi.  3. 

If  an  innkeeper  have  such  profit  out  of  his  kitchen,  cellar,  and  stables, 
as  to  make  two  hundred  pounds  of  what  cost  him  only  one  hundred,  no 
personal  tithe  is  due,  because  the  profit  did  not  in  this  case  arise  from  per- 
sonal labour  alone;  and  so  far  as  it  did,  it  arose  perhaps  more  from  the 
personal  labour  of  servants  than  from  that  of  the  master  of  the  inn. 

2  Bulstr.  141,  Dolly  v.  Davis. 

(C)  Of  what  Things  a  predial  Tithe  is  due. 

Such  tithe  as  arises  immediately  from  the  fruit  of  the  earth,  as  from 
corn,  hay,  hemp,  or  hops,  or  from  any  kind  of  fruit,  seed,  or  herb,  is 
called  a  predial  tithe. 
2  Inst.  649. 


12  TYTHES. 

(C)  Of  what  Things  a  predial  Tithe  is  due. 

It  is  so  called  because  it  arises  miinediately  from  a  fruit  of  the  farm 
or  earth. 
Inst.  G47. 

Divers  things  are  by  the  ecclesiastical  law  liable  to  the  payment  of  a 
predial  tithe,  which  by  the  common  law  are  not. 
4  Mod.  344. 

The  design  under  this  head  is  to  show  what  things  are  liable  by  the 
common  law  to  the  payment  of  a  predial  tithe. 

In  doing  this  it  will  appear  that  some  things,  which  are  in  general  ex- 
empted therefrom,  become  by  custom  liable  to  the  payment  of  a  predial 
t  i  I  he. 

1  Roll.  Abr,  G37,  E,  pi.  2 ;  1  Roll.  Abr.  642,  S,  pi.  7,  8. 

It  will  also  appear  that  some  things,  which  are  in  general  liable 
thereto,  are  under  particular  circumstances  exempted  from  the  payment 
of  predial  tithe. 

1  Roll.  Abr.  645,  pi.  11 ;  Cro.  Eliz.  475  ;  Freem.  335 ;  12  Mod.  235. 

But  wherever  any  fraud  is  used  to  bring  a  thing  under  a  circumstance, 
by  reason  of  which  it  would,  if  it  had  come  fairly  thereunder,  have  been 
exempted  from  the  payment  of  a  predial  tithe,  it  is  by  such  fraud 
rendered  liable  thereto. 

Cro.  Eliz.  475  ;  Freem.  335. 

As  it  would  be  tedious  to  enumerate  all  the  things  which  are  liable  to 
the  payment  of  a  predial  tithe,  only  those  shall  be  mentioned  concerning 
the  tithe  of  which  some  question  has  arisen ;  but  from  those  which  shall 
be  mentioned,  it  may  be  easily  collected  of  what  other  things  a  predial 
tithe  is  due. 

1.   Of  Agistment. 

Agisting,  in  the  strict  sense  of  the  word,  means  depasturing  a  beast  the 

property  of  a  stranger ;  but,  in  its  legal  sense,  it  means  depasturing  the 

1      -t  of  the  occupier  of  the  land  as  well  as  the  beast  of  a  stranger. 

/3  Jones  Bailm.  91 ;  1  Bell's  Comm.  458;  Holt's  N.  P.  Rep.  547  ;  Story,  Bailm. 
I  443  ;  Bouv.  L.  D.  h.  \.£j 

\  Agistment  tithe  is  paid,  not  for  the  increase  or  improvement  of  the 

animal  agisted,  but  for  the  grass  eaten  by  it,  and  is  proportioned  to  the 

value  of  the  grass,  not  to  the  value   of  the  actual  improvement.     But, 

being  the  tithe  of  the  grass  eaten,  it  arises  immediately  from  the  soil, 

and  is  therefore  a  predial  tithe. 

Scan-  v.  Trinity  College,  Anstr.  761 ;  Ellis  v.  Saul,  Ibid.  332 ;  Holbeach  v.  Whad- 
.,  [Iardr.  184;  Linw.  194;  Degge,  217. 

Where,  therefore,  the  occupier  of  land  does  not  agist  his  own  cattle, 
but  those  of  strangers,  the  tithe  for  the  agistment  of  barren  cattle  is 
from  the  occupier,  as  being  owner  of  the  grass  for  which  the  tithe 
i^  paid  :  but  if  the  cattle  arc  profitable,  the  owner  of  them  is  account- 
able for  the  tithes. 

■od  v.  Gibbon,  Bunb.  3  ;  Fisher  v.  Lcman,  9  Vin.  Abr.  38,  pi.  7. 

Agistment  tithe  being  the  tithe  of  the  grass,  it  follows,  that  if  the 
gra  before  paid  tithe  of  hay,  no  tithe  is  due  for  the  agistment  of 

to''  i  iath. 

Saul,  ubi  iuprd.]     ||This  doctrine  is  confirmed  by  the  ease  of  Batchelor  v. 


TYTHES.  13 

(C)  Of  what  Things  a  predial  Tithe  is  due. 
Smallcombe,  3  Madd.  12,  where  all  the  authorities  are  reviewed.     The  reasons  fur  it 
are  not  very  satisfactory.  || 

An  occupier  of  land  is  not  liable  to  the  payment  of  tithe,  for  depastur- 
ing horses  or  other  beasts  used  in  husbandry  in  the  parish  in  which  they 
are  depastured,  because  the  tithe  of  other  things  is  by  the  work  of  such 
beasts  increased. 

1  Roll.  Abr.  640,  pi.  2,  pi.  3,  pi.  G,  pi.  7  ;  Cro.  Eliz.  446  ;  Ld.  Raym.  130. 

But,  if  horses  or  other  beasts  are  used  in  husbandry  out  of  the  parish 
in  which  they  are  depastured,  an  agistment  tithe  is  due  for  such  beasts. 
7  Mod.  114,  Harrow's  case  ;  Ld.  Raym.  130 ;  [Bosworth  v.  Limbrick,  2  Raym.  809.] 

It  seems  to  be  the  better  opinion,  that  tithe  is  not  due  for  depasturing 
a  saddle-horse  which  an  occupier  of  land  keeps  for  himself  or  servant  to 
ride  upon. 

1  Roll.  Abr.  641,  pi.  4 ;  Cro.  Ja.  430 ;  Bulstr.  171 ;  Bunb.  3. 

But  an  occupier  of  land  is  liable  to  an  agistment  tithe  for  depasturing 
a  horse  which  he  keeps  for  sale. 

Cro.  Ja.  430,  Hampton  v.  Wild  ;  1  Roll.  Abr.  647,  pi.  14.  [Coach  horses  are  liable 
to  the  payment  of  an  agistment  tithe  :  Thorpe  v.  Bendlowes,  3  Burn's  E.  L.  440. J 
j|But  it  seems  that  in  this  case  the  horses  were  occasionally  used  in  drawing  coals, 
manure.  &c.  ;  otherwise  it  would  be  difficult  to  distinguish  the  case  from  that  of  saddle- 
horses  used  for  pleasure.  See  3  Wood,  38  ;  Gwill.  899 ;  2  Eag.  &  Youn.  193  ;  and 
qiuere,  whether  such  occasional  employment  for  profit  would  render  coach-horses  sub- 
ject to  agistment  tithe?     See  Stevens  v.  Aldridge,  5  Price,  350. || 

[Horses  kept  on  one  farm  for  its  cultivation,  and  used  occasionally  on 
another  farm  in  a  different  parish,  shall  not  pay  agistment  tithe.  Seeds, 
if  habitually  so  used. 

Filewood  v.  Button,  Anst.  498.]     ||See  5  Price,  350.|| 

Tithe  is  not  due  for  depasturing  milch  cattle,  which  are  milked  in  the 
parish  in  which  they  are  depastured ;  because  tithe  is  paid  of  their  milk. 

1  Roll.  Abr.  646,  pi.  2 ;  Cro.  Eliz.  446. 

If  cows  are  reserved  for  calving,  tithe  is  not  due  for  depasturing  them 
whilst  they  are  dry ;  but  if  they  are  afterwards  sold,  or  milked  in  another 
parish,  an  agistment  tithe  is  due  for  the  time  they  were  dry. 

Hetl.  100. 

Tithe  is  not  due  from  an  occupier  of  land  for  depasturing  young  cattle, 
which  are  reared  to  be  used  in  husbandry,  or  to  be  milked. 

Cro.  Eliz.  476,  Sherington  v.  Flewood. 

But  if  such  young  beasts  are  sold  before  they  come  to  such  perfection 
as  to  be  fit  for  husbandry,  or  before  they  give  milk,  tithe  is  to  be  paid 
for  depasturing  them. 

Hetl.  86,  AVoolmerston's  case. 

An  occupier  of  land  is  liable  to  tithe  for  depasturing  cattle  which  he 
keeps  for  sale. 

Jenk.  281,  pi.  6  ;  Cro.  Car.  237  ;  Show.  P.  C.  192. 

If  cattle,  which  have  neither  been  used  in  husbandry  nor  been  milked, 
are,  after  having  been  kept  some  time,  killed  to  be  spent  in  the  family 
of  the  occupier  of  the  land  on  which  they  were  depastured,  tithe  is  not 
due  for  depasturing  them. 

Jenk.  281,  pi.  6 ;  Cro.  Eliz.  446,  476 ;  Cro.  Car.  237. 

B 


14  TYTHES. 

(C)  Of  what  Things  a  predial  Tithe  is  due. 

It  is  in  general  true,  that  tithe  is  due  for  depasturing  cattle  which 
are  the  property  of  a  stranger. 

Cro.  Eliz.  476  ;  Bunb.  1 ;  Freem.  329. 

If  an  innkeeper  put  the  horse  of  his  guest  into  a  pasture  in  his  own 
occupation,  he  is  liable  to  tithe  for  depasturing  the  horse. 

Ilardr.  35,  Guilbert  v.  Eversley ;  Poph.  142. 

Tithe  is  not  due  for  depasturing  any  beast  upon  land  which  has  in  the 
same  year  paid  tithe  of  hay. 

Poph.  142  ;  2  Boll.  Bep.  191.  [Vide  3  Burn's  E.  L.  448,  and  Bateman  v.  Aistrup, 
2  Raym.  692;]  ||Batchelor  v.  Smallcombe,  3  Madd.  12;  Gwill.  1864;  3  Eag.  &  Y. 
909.|| 

Tithe  is  not  due  for  depasturing  any  beast  upon  the  headland  of  a 
ploughed  field,  provided  the  headland  be  not  wider  than  is  sufficient  to 
turn  a  plough  and  horses  upon. 

1  Boll.  Abr.  646,  pi.  19.     [Vide  Baternan  v.  Aistrup,  2  Baym.  contr.~\ 

Tithe  is  not  due  for  depasturing  cattle  upon  land  which  has  in  the 
same  year  paid  tithe  of  corn. 

Bro.  Dism.  pi.  18. 

If  land,  which  has  paid  tithe  of  corn  in  one  year,  be  left  unsown  the 
next  year,  tithe  is  not  due  for  depasturing  a  beast  upon  the  land ;  because, 
by  its  lying  fresh,  the  tithe  of  the  next  crop  of  corn  is  increased. 

1  Boll.  Abr.  642,  pi.  9. 

But  if  land,  which  has  paid  tithe  of  corn,  be  suffered  to  lie  fresh  longer 
than  by  the  course  of  husbandry  is  usual,  tithe  is  due  for  depasturing  a 
beast  upon  the  land. 

Sheph.  Abr.  part  4,  D.  104. 

As  the  questions,  Whether  tithe  is  due  for  depasturing  sheep,  and  in 
what  cases  it  is  due,  do  not  seem  to  be  settled,  it  wall  not  be  amiss  to 
mention  the  principal  cases  in  which  these  questions  have  been  agitated. 

It  is  laid  down  in  one  case,  that  tithe  is  not  due  for  depasturing  sheep, 
because  they  are  animalia  fructuosa. 

1  Boll.  Bep.  63,  pi.  7,  Mascal  v.  Price,  Mich.  12  Ja.  1. 

But  in  another  book  of  the  same  author's,  where  this  case  is  mentioned, 
there  is  a  dubitatur. 

1  Boll.  Abr.  642  B.,  pi.  8. 

In  a  case  not  long  after,  it  was  holden,  that  tithe  should  be  paid  for 
sheep  which,  after  having  been  depastured  in  one  parish  from  Michael- 
mas-day to  Lady-day,  were  removed  into  another ;  for  otherwise  the 
parson  of  the  first  parish  may  be  defrauded  of  his  tithe ;  for  the  sheep, 
which  have  been  carried  into  a  second  parish,  may  not  be  brought  back 
and  sheared  in  the  first. 

Poph.  197,  Anon.,  Mich.  2  Car.  1.  ||Where  sheep  were  fed  in  one  parish,  and  for 
several  years  were  removed  into  another  just  before  the  shearing  and  lambing  season, 
and  afterwards  brought  back  again,  it  was  held  a  fraud  inequity,  and  an  account  was 
decreed  of  the  number  so  removed.  Hall  v.  Maltby,  Price,  240 ;  Gwill.  1888  ;  3  Eag. 
.v  fou.  9 

It  was,  however,  said  in  this  case  by  Whitelock,  J.,  that  de  animalilus 
inutilibu8,  as  horses,  oxen,  &c,  the  parson  shall  have  agistment  tithe  ;  but 
that  de  animalibus  utilibus,  as  cows,  sheep,  &c,  he  shall  have  tithe  in  kind. 

in  one  case  it  is  said  to  have  been  holden,  that  tithe  is  not  to  be  paid 


TYTHES.  15 

(C)  Of  what  Things  a  predial  Tithe  is  due. 

for  depasturing  sheep  which  are  afterwards  eaten  in  the  house  of  the  oc- 
cupier of  the  land. 

Cro.  Car.  237,  Facey  v.  Long,  Mich.  7  Car.  1. 

It  would  follow  as  a  necessary  implication  from  the  doctrine  of  this 
case,  that  tithe  is  due  for  depasturing  sheep  which  are  not  afterwards 
eaten  in  the  house  of  the  occupier  of  the  land. 

But  in  another  report  of  the  same  case  it  is  said  to  have  been  holden, 
that  tithe  is  not  due  for  depasturing  wethers;  because  they  will  yield  a 
tithe  of  wool. 

1  Roll.  Abr.  647,  pL  13. 

In  one  modern  case  in  the  Court  of  Exchequer  it  is  said,  that  it  seemed 
to  be  admitted,  that  tithe  is  due  for  depasturing  yearling  sheep. 

Bunb.  90,  Baker  v.  Sweet,  Mich.  8  G.  1. 

In  another  case  shortly  after  in  the  same  court,  it  appeared,  that  sheep, 
after  paying  tithe  of  wool,  had  been  fed  upon  turnips  not  severed,  by 
which  they  were  bettered  to  the  value  of  five  shillings  each  ;  and  that  they 
were  then  sold.  It  also  appeared,  that  the  defendant  had,  before  the 
next  shearing-time,  bought  in  as  many  as  were  sold ;  and  that  of  these  tithe 
of  wool  was  paid.  It  was  insisted  that  if  an  agistment  tithe  were  to  be 
paid  for  the  sheep  sold,  and  tithe  of  wool  for  those  bought,  this  would  be 
a  double  tithing ;  but  the  court  decreed  the  defendant  to  account  for  an 
agistment  tithe  for  the  sheep  sold. 

Gilb.  Rep.  in  Eq.  231,  Coleman  v.  Baker,  Pasch.  12  G.  1. 

In  the  latter  case,  the  case  of  Dummer  and  Wingfield,  H.  1  W.  ^  M., 
was  mentioned,  in  which  it  had  been  decreed,  that  the  decree  had  been 
affirmed  upon  a  rehearing,  that  tithe,  for  depasturing  sheep,  from  the 
time  they  were  sheared  until  they  were  sold,  should  be  accounted  for. 

In  a  still  later  case,  the  Court  of  Exchequer  were  of  a  quite  different 
opinion.  A  bill  being  brought  for  the  tithe  of  depasturing  sheep  four 
months  in  a  parish  after  they  had  been  shorn,  and  tithe  of  their  wool  had 
been  paid  in  that  parish,  it  appeared,  that  at  the  end  of  the  four  months 
they  were  removed  into  another  parish,  and  that  they  were  shorn  there 
at  the  next  shearing-time.  In  this  case,  the  cases  of  Coleman  and  Baker, 
and  of  Dummer  and  Wingfield,  were  cited  by  the  plaintiff's  counsel :  but 
the  court  decreed,  that  tithe  should  not  be  paid  for  depasturing  sheep ; 
because  they  are  animalia  fructuosa. 

Bunb.  313,  Poor  v.  Seymour,  Ilil.  5  Geo.  2. 

[The  doctrine  advanced  in  this  case '  has,  however,  been  overruled  in 
later  cases,  upon  this  principle,  that  the  tithe  of  wool  being  payable  only 
in  the  parish  where  the  sheep  are  shorn,  they  are  not  animalia  fructuosa 
in  the  parish  wherein  they  have  been  only  agisted,  and  therefore  shall 
pay  an  agistment  tithe. 

Bateman  v.  Aistrup,  2  Ravm.  658 ;  Howes  v.  Carter,  Anstr.  560.  See  Ellis  v.  Saul, 
1  Anstr.  332;  QwilL  1326;  2  Eag.  &  Y.  360;  Ellis  v.  Termor,  Gwill.  1022,  l"i6.] 

||  Sheep  are  prima  facie  considered  animalia  fruetuosa,  and  therefore 
not  subject  to  agistment  tithe ;  and  if  the  plaintiff  seek.-,  to  recover  such 
tithes,  he  must  state  the  special  circumstances  which  entitle  him  to  it. 

Turner  v.  "Williams,  3  Anst.  829 ;  Gwill.  1456. 

"Where  a  vicar  claiming  agistment  tithe  showed  that  he  alone  had  al- 
ways  taken  the  other  small  tithes,  he  was  held  entitled  to  agistment,  though 


16  TYTHES. 

(C)  Of  what  Things  a  predial  Tithe  is  due. 

it  had  never  been  received  or  demanded,  and  although  it  appeared  that 
the  crown,  by  an  ancient  grant,  had  conveyed  to  certain  lay  impropriators 
tithe,  not  only  of  grain  and  hay,  but  of  "herbage  ;"  for  "herbagium" 
does  not  necessarily  cover  agistment  tithe,  unless  perception  be  proved. 
Byani  v.  Booth,  2  Price,  231 ;  Scott  v.  Lawson,  7  Pri.  267,  Wood,  B.,  diss.\\ 

2.  Of  Com. 

It  is  laid  down  in  divers  cases,  that  tithe  is  not  due  of  the  ratings  of 
corn  involuntarily  scattered. 
1  Roll.  Abr.  G45,  pi.  11 ;  Cro.  Eliz.  475  ;  Moor,  278  ;  Freem.  335. 

But  if  more  corn  be  fraudulently  scattered,  than  if  proper  care  had 
been  taken  would  have  been  scattered,  tithe  is  due  of  the  rakings. 
Cro.  Eliz.  475  ;  Freem.  335.     ||Vide  2  Wood,  47.  || 

It  is  said  by  Holt,  C.  J.,  that  tithe  is  due  of  the  rakings  of  all  corn, 
except  such  as  is  bound  up  in  sheaves. 
12  Mod.  235. 

||When  the  course  of  harvesting  pursued  by  a  farmer  is  such  that  a 
considerable  quantity  of  barley  rakings  is  necessarily  left  after  the  bar- 
ley is  bound  into  sheaves,  the  parson  is  entitled  to  tithe  of  these  rakings, 
although  no  fraud  is  imputed  to  the  farmer,  and  though  as  little  rakings 
are  left  as  is  possible  in  that  mode  of  husbandry. 
Glanvill  v.  Stacey,  G  Barn.  &  C.  543  ;  and  see  1  Hagg.  R.  487.  || 

[If  stubble  be  used,  partly  for  fodder,  and  partly  for  manure,  so  that 
the  whole  of  it  is  consumed  in  husbandry,  it  is  not  subject  to  the  payment 
of  tithe :  though  it  would  be  otherwise,  perhaps,  if  an  unusual  quantity 
of  it  were  left,  in  order  to  make  a  fraudulent  profit  of  it. 

Teunnant  v.  Stubbing,  Anstr.  640;]  ||Gwill.  1438  ;  2  Eag.  &  Y.  425,  S.  C.|| 

3.  Of  Emj. 

Hay  is  liable  to  the  payment  of  tithe,  notwithstanding  beasts  of  the 
plough  or  pail,  or  sheep  are  to  be  fed  therewith. 

Cro.  Ja.  47  ;  Webb  v.  Warner,  1  Roll.  Abr.  650,  pi.  12  ;  12  Mod.  497. 

But  tithe  is  not  due  of  hay  grown  upon  the  headland  of  a  ploughed 
field,  provided  the  headland  be  not  wider  than  is  sufficient  to  turn  a 
plough  and  horses  upon. 

1  Roll.  Abr.  646,  pi.  19. 

It  is  laid  doAvn  in  one  case,  that  if  a  man  cut  grass,  and  while  it  is  in 
the  swathe,  carry  it,  and  feed  his  plough  cattle  therewith,  not  having 
sufficient  sustenance  for  them  othcnvise,  tithe  is  not  due  thereof. 

1  Roll.  Abr.  645  ;  ||8  Vin.  Ab.  (Z,)  pi.  7,  p.  587 ;  Burn's  Ecc.  L.  v.  iii,  467  ;||  Craw- 
ley v.  Wells,  Mich.  9  Car.  1. 

And  in  a  much  later  case,  the  Court  of  Exchequer  seemed  to  be  of 
opinion,  that  tithe  is  not  due  of  vetches  or  clover  cut  green  and  given  to 
cattle  used  in  husbandly. 

l'.mili.  27'),  Hayes  v.  Dowse,  Ilil.  3  G.  2.  ||The  question  did  not  arise  on  the  plead- 
ings in  this  case.  See  6  Price,  361,  note.||  [And  the  law  is  so  clear,  that  grass  newly 
mi  and  i  ii  ii  liv  agricultural  cattle  is  nut  titheahle,  that  in  a  late  case,  the  bill,  as  to 
this  point,  was  dismissed  with  costs.  Collier  v.  Hawse,  Anstr.  481.]  ||And  see  Man- 
tell  v.  Payne,  4  Gwill.  L511  :  3  Bag.  &  Y.  1380;  6  Price,  302,  note.  But  to  exempt 
such  grass,  &c,  from  tithe,  it  is  necessary  that  there  be  an  insufficiency  of  other  foddei 


TYTHES.  17 

(C)  Of  what  Things  a  predial  Tithe  is  due. 

or  sustenance  on  the  farm,  and  that  the  cattle  fed  should  be  used  in  husbandry ;  and 
both  those  are  questions  of  fact  -which  it  is  fit  to  leave  to  a  jury.  Stevens  v.  Aldridge. 
5  Price,  334.  And  "  fodder,"  and  "  sustenance"  extend  to  dry  food  as  well  as  green : 
so  that  the  grass,  &c,  given  to  cattle  used  in  husbandry  is  not  exempted  from  tithe,  if 
there  is  sufficient  food  of  any  sort  on  the  farm.  Dorman  v.  Scars,  6  Price  R.  338  ; 
Gwill.  1897  ;  and  see  M'Clel.  113 ;  Gwill.  2055  ;  13  Price,  394 ;  Eagle  on  Tithe, 
v.  i.  456.|| 

But  in  a  case  some  years  prior  to  the  latter  case,  it  was  liolden  that  a 
right  to  tithe  of  hay  accrues  upon  the  mowing  of  the  grass ;  and  that 
the  subsequent  application  thereof,  either  while  it  is  in  grass,  or  after  it 
is  made  into  hay,  shall  not,  although  beasts  of  the  plough  or  pail  are  fed 
therewith,  take  away  the  right. 

12  Mod.  498,  Selby  v.  Bank,  Pasch.  13  W.  3.  ||See  Willis  v.  Stone,  1  Young.  & 
J.  2G2.il 

And  the  doctrine  of  the  last  case  coincides  with  that  of  an  old  case,  in 
which  it  is  laid  down,  that  tares  cut  green,  and  given  to  beasts  of  the 
plough,  may  by  special  custom  be  exempted  from  the  payment  of  tithes : 
from  whence  it  follows,  that  such  tares  are  not  in  the  general  exempted 
therefrom,  (a) 

Cro.  Car.  393,  Mead  v.  Thurman,  Ilil.  10  Car.  \\(a)  Unless  in  the  absence  of  all 
other  sustenance.     See  the  cases  supra,  and  see  Toll,  on  Tithes.  83  ;  Gwill.  1511. || 

It  is  laid  down  in  divers  books,  that  tithe  is  not  due  of  aftermath  hay, 
because  tithe  can  only  be  due  once  in  the  same  year  from  the  same  land. 
2  Inst.  G52  ;  Cro.  Ja.  42 ;  Ld.  Pvaym.  243. 

But  it  is  in  other  books  laid  down,  that  tithe  is  due  of  aftermath  hay. 
Cro.  Eliz.  660  ;  Cro.  Ja.  116 ;  Cro.  Car.  403  ;  12  Mod.  498  ;  Bunb.  10.     Bunbury 
makes  a  qucere  as  to  this  point. 

And  it  has  been  holden  in  two  modern  cases,  that  if  divers  crops  are 
grown  upon  the  same  land  in  the  same  year,  tithe  is  to  be  paid  of  every 
crop. 

Bunb.  10,  Benson  v.  Watkins,  Hil.  3  G.  1 ;  Bunb.  314,  Swinfen  v.  Digbv,  Ilil. 
3G.  2. 

||  It  is  now  settled  that  tithe  of  aftermath  is  due  of  common  right,  and 

that,  in  order  to  discharge  it,  a  special  custom  must  be  shown ;  as,  for 

example,  that  the  occupiers  had  been  accustomed  to  make  the  first  vesture 

into  hay,  and  to  pay  the  tenth  cock  thereof,  well  dried,  in  satisfaction  of 

tithe  of  the  first  vesture  and  aftermath,  which  was  held  a  good  discharge. 

Cro.  Eliz.  446  ;  1  Roll.  Abr.  640  ;  Gwill.  531,  473  ;  Cro.  Eliz.  660  ;  Moore,  910 ; 
Cro.  Ja.  116  ;  and  see  Mirehouse  on  Tit.  p.  40. 

As  to  the  mode  of  tithing  hay,  see  post,  p.  43. 

4.  Of  Wood. 

It  is  said  in  one  case,  that,  before  the  constitution  of  Stratford,  wood 
was  only  tithable  in  particular  places  by  custom ;  because  wood  does  not 
renew  annually. 

12  Mod.  111. 

By  that  constitution,  which  was  made  in  the  seventeenth  year  of  the 
reign  of  Edward  the  Third,  it  was  ordained,  that  tithes  should  be  paid! 
within  the  province  of  Canterbury  of  sylva  cccdua. 

2  Inst.  642. 

In  the  next  year,  the  commons  complained  to  the  kins:  of  that  constitu- 
Vol.  X.— 3  b  2 


18  TYTHES. 

(C)  Of  what  Things  a  predial  Tithe  is  due". 

tion,  as  an  unprecedented  thing;  and  petitioned,  that  the  people  might 
remain  in  the  same  state  as  they  had  been  under  his  royal  progenitors, 
and  that  a  prohibition  might  be  granted  for  all  who  should  be  impleaded 
in  court  Christian  for  tithe  of  wood. 
2  Inst.  642. 

The  answer  was,  The  king  willeth  that  law  and  reason  be  done. 
2  Inst.  642. 

In  another  petition,  presented  in  the  twenty-first  year  of  the  same  reign, 
the  commons  complained  to  the  king,  that  the  clergy,  by  virtue  of  the  con- 
stitution made  in  the  seventeenth  year  of  his  reign,  demanded  tithes  both 
of  gross  wood  and  underwood,  whether  the  latter  were  sold  or  not. 

2  Inst.  642. 

To  this  the  king1  answered,  that  the  archbishop  of  Canterbury  and  the 
other  bishops  have  answered,  that  tithe  is  only  demanded  by  virtue  of 
that  constitution,  of  underwood. 

5  Inst.  642. 

After  other  petitions  had  been  in  vain  presented  by  the  commons,  the 
great  men  of  the  realm  did,  in  the  forty-fifth  year  of  the  same  reign, 
join  with  the  commons  in  a  petition. 

j|Vide  these  Petitions,  Gwill.  4,  5.|| 

In  consequence  of  this  petition,  a  statute  was  in  the  same  year  made  in 
the  following  words  :  "  At  the  complaint  of  the  great  men  and  commons, 
showing  by  their  petition,  that  when  they  sell  their  gross  wood,  of  the  age 
of  twenty  or  forty  years,  or  of  a  greater  age,  to  merchants,  to  their  own 
profit,  and  to  the  aid  of  the  king  in  his  wars,  the  parsons  and  vicars  of 
holy  church  do  implead,  and  trouble  the  said  merchants  in  court  Christian, 
for  the  tithes  of  the  said  wood,  under  the  denomination  of  silva  ccedua, 
by  reason  of  which  they  cannot  sell  their  wood  for  the  real  value,  to  the 
great  damage  of  themselves  and  the  realm,  it  is  ordained  and  established, 
that  a  prohibition  in  this  case  shall  be  granted,  and  upon  the  same  an 
attachment,  as  it  hath  hitherto  been." 
45  Ed.  3,  c.  3. 

From  these  petitions  and  answers  and  this  statute-it  appears  plainly, 
that  the  demand  of  tithe  of  wood,  by  virtue  of  the  constitution  made  in 
the  seventeenth  year  of  the  reign  of  Edward  the  Third,  was,  at  least  as 
to  gross  wood,  an  encroachment. 

2  Inst.  642  ;  45  Ed.  3,  c.  3 ;  Plow.  470;  Bro.  Prohib.  pi.  1 ;  Cro.  Ja.  100. 

After  the  making  of  this  statute,  prohibitions  were  constantly  granted 
to  suits  instituted  in  spiritual  courts  for  tithe  of  gross  wood  :  but  two  ques- 
tions frequently  arose  ;  namely,  What  is  gross  wood  ?  and  of  what  age 
gross  wood  must  be,  before  it  is  exempted  from  the  payment  of  tithe  ? 

2  Inst.  043,  644,  645. 

For  the  putting  of  an  end  to  these  questions,  it  has  been  long  settled, 
that  by  gross  wood  is  not  meant  high  or  large  wood,  but  such  wood  as  is 
generally,  or  by  the  custom  of  a  particular  part  of  the  country,  used  as 
timber ;  and  that  all  such  wood,  if  it  be  of  the  age  of  twenty  years,  is 
exempted  from  the  payment  of  tithe. 
2  Inst.  642,  643  ;  Cro.  Eliz.  1  ;  12  Mod.  524. 

The  wood  of  oaken,  ashen,  and  elmen  trees  being  universally  used  as 


TYTHES.  19 

(C)  Of  what  Things  a  predial  Tithe  is  due. 
timber,  it  has  been  constantly  holden,  that  such  trees,  if  of  the  age  of 
twenty  years,  are  gross  wood. 

2  Inst.  G42. 

It  was  holden  upon  great  deliberation,  notwithstanding  what  is  laid 
down  to  the  contrary  in  Plow.  470,  that  hornbeam  trees,  if  of  the  age 
o'f  twenty  years,  are  gross  wood ;  because  the  wood  of  such  trees  is  fre- 
quently used  in  building  and  repairing. 

2  Inst.  G43. 

It  has  for  the  same  reason  been  holden,  that  an  aspen  tree,  if  of  the 
age  of  twenty  years,  is  gross  wood. 

2  Inst.  643. 

Tithe  is  in  general  due  of  beechen,  birchen,  hazel,  willow,  fallow,  alder, 
maple,  and  white-thorn  trees,  and  of  all  fruit  trees,  of  what  age  soever 
they  are ;  because  the  wood  of  these  trees  is  not  often  used  as  timber. 

Plow.  470 ;  Cro.  Eliz.  1 ;  Cro.  Ja.  199  ;  1  Roll.  Abr.  640,  pi.  5,  pi.  6  ;  Brownl.  94. 

But  if  the  wood  of  any  of  these  trees  be  frequently  used,  in  a  particu- 
lar part  of  the  country  where  timber  is  scarce,  in  building  or  repairing, 
tithe  is  not  due  of  such  trees,  if  they  are  of  the  age  of  twenty  years. 

Hob.  219;  Brownl.  94;  HGwill.  357.|| 

It  is  laid  down  in  divers  cases,  that  if  a  timber  tree,  after  it  is  of  the 
age  of  twenty  years,  decay,  so  as  to  be  of  no  use  for  repairing  or  building, 
tithe  is  not  due  of  the  wood  of  this  tree ;  because  it  was  once  privileged. 

11  Rep.  48  ;  Cro.  Eliz.  477  ;  Cro.  Ja.  100  ;  1  Roll.  Abr.  640,  pi.  2. 

But  the  contrary  is  laid  down  in  some  other  cases. 

In  two  of  these  it  is  laid  down,  that  if  the  wood  of  a  coppice  has  been 
usually  felled  for  firing,  such  wood  shall  pay  tithe,  although  it  stand  till 
it  be  forty  years  of  age. 

Sid.  300 ;  1  Lev.  189. 

In  another  it  is  laid  down,  that  if  the  wood  of  a  timber  tree  be  sold  for 
firing,  it  is,  although  the  tree  be  of  the  age  of  twenty  years,  liable  to  the 
p;i}-ment  of  tithe. 

Bunb.  99  ;  ||1  Wood.  479 ;  1  Eag.  &  Yo.  677  ;||  Greenway  v.  The  Earl  of  Kent,  Hil. 
7  O.  1. 

The  doctrine,  however,  of  the  former  cited  cases  has  been  confirmed  in 
a  modern  case. 

A  bill  being  brought  for  tithe  of  the  loppings  of  timber  trees,  which  had 
been  sold  for  firing,  it  was  insisted  that  this  wood,  which  would  otherwise 
have  been  exempted  from  the  payment  of  tithes,  was  liable  thereto,  because 
it  was  sold  for  firing ;  and  some  of  the  cases  above  cited  were  relied  upon. 

MS.  Rep.,  Walton  v.  Tryon,  Mich.  25  G.  2 ;  [Ambl.  130.] 

The  bill  was  dismissed  ;  and  by  Lord  Hardwicke,  Chancellor. 

||Gwill.  827 ;  2  Eag.  &  Yo.  123,  S.  C.|| 

In  the  cases  in  1  Lev.  189,  and  Sid.  300,  the  wood  in  question  was 
coppice  wood,  which  had  been  usually  felled  for  firing ;  and  consequently 
these  cases  do  not  conclude  to  the  point,  because  such  wood,  of  what  age 
soever  it  be,  is  tithable.  "What  is  laid  down  in  the  case  of  Greenaway  and 
the  Earl  of  Kent,  is  not  now  law ;  for  in  the  case  of  Bybe  and  Huxley, 
Hil.  11  Geo.  1,(«)  which  was  subsequent  thereto,  it  was  agreed  that  tithe 
is  not  due  of  the  wood  of  a  timber  tree  which  has  been  once  privileged 
from  the  payment  of  tithe,  although  such  wood  be  sold  for  firing. 

||(a)  2  Wood,  237  ;  I  Eag.  &  Yo.  805 ;  Gwill.  657. || 


20  TYTHES. 

(C)  Of  what  Things  a  predial  Tithe  is  due. 

It  is  in  one  book  laid  down,  that  the  loppings  of  a  timber  tree,  which 
are  of  twenty  years'  growth,  are  exempted  from  the  payment  of  tithe, 
because  loppings  of  that  age  may  be  useful  in  building. 

Plow.  470,  Soby  v.  Molins ;  ||1  Eag.  &  Yo.  60,  S.  C.|| 

But  it  is  laid  down  in  divers  other  books,  that  if  a  timber  tree  of  tlft 
age  of  twenty  years  be  lopped,  tithe  is  not  to  be  paid  of  the  loppings, 
although  they  are  not  of  twenty  years'  growth ;  for  that  as  the  tree  is 
exempted  from  the  payment  of  tithe,  the  loppings  are  likewise  exempted. 

Bro.  Dism.  pi.  14 ;  11  Rep.  48  ;  Cro.  Eliz,  478 ;  Godb.  175  ;  1  Roll,  Abr.  640,  pi.  3. 

And  the  doctrine  of  the  latter  cited  books  was  confirmed  in  the  case 
of  Walton  and  Tryon. 

In  this  case,  it  appeared  that  the  loppings  of  the  trees,  for  the  tithe  of 
which  the  bill  was  brought,  were  not  of  twenty  years'  growth :  but  it  ap- 
peared that  the  trees  were  of  the  age  of  twenty  years,  before  they  had  ever 
been  lopped.  It  was  decreed  by  Lord  Hardwicke,  that  tithe  was  not  due 
of  the  loppings  ;  for  that  if  a  tree  be  once  privileged  from  paying  tithe, 
the  privilege  extends  to  all  future  loppings,  of  whatsoever  age  they  are. 

[3  Burn's  E.  L.  452;]   ||2  Eag.  &  Yo.  123;  Gwill.  827.|| 

It  has  been  holden,  that  although  a  tree  was  lopped  before  it  was  of 
the  age  of  twenty  years,  the  future  loppings  of  the  tree,  if  they  are  of 
twenty  years'  growth,  are  not  liable  to  the  payment  of  tithe. 

I  Roll.  Abr.  640,  pi.  1. 

But  in  the  case  of  Walton  and  Tryon,  it  was  laid  down  by  Lord  Hard- 
wicke, that  if  a  tree  was  lopped  before  it  was  of  the  age  of  twenty  years, 
all  future  loppings,  of  how  many  years'  growth  soever  they  may  be,  are 
liable  to  the  payment  of  tithe. 

It  has  been  holden  that  if  a  tree,  which  was  privileged  from  paying 
tithe,  be  felled,  the  germins  that  spring  from  the  root  of  the  tree  are 
likewise  privileged. 

II  Rep.  48,  Liford's  case. 

But  in  the  case  of  Walton  and  Tryon  it  was  holden,  that  all  germins, 
which  spring  from  the  roots  of  trees  that  have  been  felled,  are  liable  to 
the  payment  of  tithe. 

||  This  decision  has  been  confirmed,  (in  opposition  to  the  doctrine  laid 
down  in  2  Inst.  G43,)  by  recent  cases ;  in  one  of  which  the  Court  of  B. 
It.  decided,  that  young  oak  wood  of  more  than  twenty  years'  standing, 
not  springing  from  acorns,  but  from  old  stools  of  felled  timber  trees  of 
more  than  twenty  years  growth,  was  not  exempted  from  tithe. 

Ford  v.  Racster,  4  Maule  &  S.  130 ;  Gwill.  1729  ;  and  see  Chichester  v.  Sheldon, 
1  Turner,  245  ;  3  Eag.  &  Yo.  1102  ;  Gwill.  2072,  S.  C. ;  Lewis  v.  Snell,  Gwill.  1720; 
3  Eag.  &  Yo.  1388;  Evans  v.  Rowe,  1  M'Clel.  &  Y.  577.  Sed  vide  the  N.  P.  case  of 
Unde'rwood  v.  Buckle,  1  Eagle  on  Tithe,  251 ;  and  see  this  subject  observed  upon  at 
length,  1  Eagle  on  Tithe,  23  I,  et*eg.\\ 

The  wood  of  a  coppice,  which  has  usually  been  felled  for  firing,  is  liable 
to  pay  tithe,  although  the  same  be  of  the  age  of  forty  years. 

1  Lev.  189  ;  Sid.  300. 

And  in  the  case  of  Walton  and  Tryon  it  was  laid  down  by  Lord  Hard- 
wicke, that  if,  when  the  wood  of  a  coppice  is  felled,  some  trees  growing 
therein,  which  are  of  the  age  of  twenty  years,  and  have  never  been  lopped, 
are  lopped,  and  the  loppings  are  promiscuously  bound  up  in  faggots  with 
the  coppice  wood,  tithe  must  be  paid  of  the  whole ;  for  that  it  would  be 


TYTHES.  21 

(C)  Of  what  Things  a  predial  Tithe  is  due. 

very  difficult  to  separate  the  tithable  wood  from  that  which  is  not  so, 
and  the  owner  ought  to  suffer  for  his  folly,  in  mixing  the  latter  with  the 
former. 

If  a  tree,  or  the  lopping  of  a  tree,  is  exempted  from  the  payment  of 
tithe,  the  bark  of  the  tree  or  lopping  is  likewise  exempted. 

11  Rep.  48,  Liford's  case;  Freem.  334. 

The  words  silva  ccedua  are  sometimes  used  as  if  they  signified  the  same 
as  the  word  underwood:  but  the  former  words  are  of  a  much  larger  sig- 
nification ;  for  under  the  words  silva  ccedua  is  included  every  sort  of 
wood,  except  gross  wood  of  the  age  of  twenty  years. 

It  appears,  from  what  has  been  already  mentioned,  that  tithe  is  in 
general  due  of  silva  ccedua. 

If  young  trees  are  taken  out  of  a  nursery  in  one  parish,  and  sold  to 
be  planted  in  another  parish,  tithe  is  due  thereof;  else  the  parson  might 
be  deprived  of  the  tithes  of  his  whole  parish,  by  converting  the  land 
into  nurseries. 

1  Roll.  Abr.  637,  pi.  0 ;  Cro.  Car.  526. 

And  it  is  in  one  case  laid  down,  that  tithe  is  due  of  young  trees 
taken  out  of  a  nursery}  although  they  are  sold  to  be  planted  in  the  same 
parish. 

Hard.  380,  Grant  v.  Hadding;  ||Gibbs  v.  Wybourne,  Gwill.  501. || 

But,  although  it  be  in  the  general  true,  that  silva  ccedua  is  liable  to 
the  payment  of  tithes,  yet  such  wood  is,  under  certain  circumstances, 
exempted  therefrom. 

If  silva  ccedua  be  used  in  the  parish  wherein  it  grew  to  burn  bricks  for 
the  repairing  or  necessary  enlarging  of  the  house  of  a  parishioner,  tithe  - 
is  not  due  thereof. 

1  Roll.  Abr.  645,  pi.  8,  pi.  9. 

But,  if  such  wood  be  used  to  burn  bricks  for  enlarging  a  house  more 
than  is  necessary  for  the  family  of  the  parishioner,  tithe  is  due  thereof. 

2  Roll.  Abr.  645,  pi.  10. 

It  is  laid  down  in  two  cases,  that  silva  ccedua  is  exempted  from  the 
payment  of  tithe,  when  it  is  burnt  in  the  house  of  an  inhabitant  of  the 
parish  wherein  it  grew. 

Cro.  Eliz.  609,  Austin  v.  Lucas,  Pasch.  40  Eliz. ;  Ellis  v.  Drake,  Pasch.  14  Jac.  1 ; 
||Gwill.  829.     See  Willis  v.  Stone,  infra.\\ 

But  in  a  case,  not  many  years  subsequent  to  these,  it  is  laid  down, 
that  such  wood  is  only  exempted  from  the  payment  of  tithe  when  it  is 
burnt  in  the  house  of  a  parishioner,  who  occupies  land  in  the  parish 
wherein  it  grew. 

Sid.  447,  Tilden  v.  Waller,  Pasch.  22  Car.  1 ;  1  Yentr.  75. 

And  from  a  still  later  case  it  may  be  inferred,  that  such  wood  is  only 
exempted  from  the  payment  of  tithe  when  it  is  burnt  in  the  house  of  an 
occupier  of  land  in  the  parish  in  which  it  grew,  for  the  necessary  use  of  his 
family ;  for  it  is  therein  laid  down,  that  if  the  wood  be  used  for  drying 
hops,  of  which  the  parson  has  no  benefit,  his  tithe  of  hops  having  been  set 
out  before  the  hops  were  dried,  tithe  must  be  paid  thereof. 

Freem.  335,  Anon.,  Mich.  11  W.  3. 

If  an  occupier  of  land,  in  a  parish  where  tithe  of  wood  and  tithe  of 
corn  are  both  due  to  the  same  person,  use  silva  csedua  for  enclosing  his 


22  TYTHES. 

(C)  Of  what  Things  a  predial  Tithe  is  due. 

own  corn  land,  which  lies  in  the  parish  wherein  the  wood  grew, -tithe  is 
not  due  of  the  wood,  because  this  is  used  for  the  preservation  of  corn 
whereof  tithe  is  due. 

1  Roli.  Abr.  644,  pi.  2 ;  Ld.  Raym.  130. 

But,  if  such  wood  be  used  for  enclosing  the  corn-land  of  another  per- 
son, tithe  is  due  thereof;  notwithstanding  the  person  who  is  entitled  to 
the  tithe  of  the  wood  is  likewise  entitled  to  the  tithe  of  the  corn  grown 
upon  the  land  enclosed. 

1  Saund.  143,  Croucher  v.  Collins. 

If  the  tithe  of  hops  and  the  tithe  of  wood  are  both  due  to  the  same 
person,  tithe  is  not  due  of  silva  csedua  used  in  poling  the  hops  ;  because 
the  tithe  of  the  hops  is  increased  by  the  use  of  the  poles. 

Freem.  334,  Anon. ;  Bunb.  20. 

Tithe  is  not  due  of  silva  ccedua  used  in  making  or  repairing  carts  or 
ploughs  to  be  used  in  husbandry  in  the  parish  wherein  the  wood  grew ; 
because  by  the  use  of  the  carts  and  ploughs  the  tithes  of  other  things  are 
increased. 

Goldes,  93,  Anon. 

[|  But  it  has  lately  been  decided  by  Chief  Baron  Alexander,  after  re- 
viewing all  the  authorities,  that  wood  used  for  hop-poles  on  the  farm,  for 
hurdles  for  hurdling  sheep,  for  repairing  hedges,  for  land- draining  on  the 
farm,  and  for  fuel  in  the  husbandry  house,  is  not  exempted  by  common 
law  from  tithe,  though  it  may  be  exempted  by  a  special  custom.  A  cus- 
tom in  part  of  a  hundred,  exempting  hedges  and  hedge-rows  less  than  a 
rod  in  width  from  tithe  of  wood  and  underwood,  is  bad. 

Willis  v.  Stone,  1  Younge  &  J.  262;  Page  v.  Wilson,  1  Jac.  &  Walk.  513. || 

5.  Of  divers  other  Things 

It  is  laid  down  in  one  book,  that  tithe  is  to  be  paid  of  acorns,  although 
the  trees  upon  which  they  grew  would  not  be  liable  to  the  payment  of 
tithe ;  because  the  acorns  are  an  annual  increase. 

11  Rep.  49,  Liford's  case ;  ||1  Eag.  &  Yo.  152.  || 

But  in  two  other  books  it  is  laid  down,  that  tithe  is  not  due  of  acorns, 
unless  they  are  gathered  and  sold. 

Litt.  Rep.  40;  Hetl.  27;  ||Gwill.  428,  1554,  acc.\\ 

All  kinds  of  flowers  and  roots,  whether  they  grew  in  a  garden  or  a  field, 
are  liable  to  the  payment  of  tithes. 

Litt.  Rep.  148,  Stile's  case. 

Fruit  of  every  kind,  although  it  grow  upon  a  tree  in  the  hedge  of  a 
field,  is  liable  to  the  payment  of  tithe. 

2  Inst.  021 ;  Bunb.  184. 

||  In  the  case  of  the  Kensington  gardeners  and  nurserymen,  it  was  much 
debated,  whether  hothouse  plants,  as  pine-apples,  melons,  orange  trees, 
and  the  like,  were  subject  to  tithes.  The  Court  of  Exchequer  decided  in 
favour  of  the  claim,  and  directed  an  account.  On  an  appeal  to  the  House 
of  Lords,  the  appellants  urged,  in  opposition  to  the  claim,  that  these  tithes, 
if  any  were  due,  must  be  predial  tithes,  but  that  predial  tithes  arose  merely 
and  immediately  out  of  the  ground ;  that  these  plants  were  exotics;  that 
climate  and  compost  must  be  procured  to  keep  them  in  a  state  of  vegeta- 
tion ;  that  they  do  not  grow  in  the  earth ;  that  the  skill  and  labour  of 


TYTHES.  23 

(C)  Of  what  Things  a  predial  Tithe  is  due. 

several  years  is  requisite  to  bring  pine-apples  to  perfection,  which  is  only 
attainable  by  the  skilful  management  of  artificial  heat ;  and  that  if  tithes 
■were  added  to  the  expense  of  cultivating  these  costly  exotics,  it  must  put 
an  end  to  this  species  of  horticulture.  On  the  other  hand  it  was  con- 
tended, that  the  arguments  drawn  from  the  expense  and  difficulty,  and 
artificial  mode  of  raising  these  vegetables  would  equally  prove  various 
tithable  productions  not  to  be  tithable ;  and  that  if  exotics  were  not  titr- 
able, the  land  would  scarcely  yield  any  tithable  matters,  as  the  greatest 
part  of  our  vegetable  productions  are  not  indigenous.  The  House  of 
Lords  gave  no  decision  on  this  important  point,  but  reversed  the  decree 
of  the  Court  of  Exchequer  on  a  collateral  point,  viz.,  that  the  defendants 
had  entered  into  compositions  with  their  vicar  for  tithes,  which  had  not 
been  determined  by  a  sufficient  notice,  and,  consequently,  they  were  not 
liable  to  a  claim  for  tithes  in  kind. 
Adams  v.  Waller,  21  Geo.  3  ;  Gwill.  1204. 

In  a  subsequent  case,  however,  the  Court  of  Exchequer  have  decided 
against  this  claim.  An  impropriate  rector  filed  his  bill  against  nurserymen 
for  tithes  in  kind  of  all  the  produce  of  their  nursery-grounds,  including 
pines,  grapes,  and  exoties  produced  or  perfected  in  hothouses.  The  de- 
fendants admitted  the  claim  as  to  the  common  productions  of  the  nursery- 
ground,  which  they  had  offered  to  account  for ;  but  denied  it  as  to  pines 
and  exotics  forced  in  buildings,  which  they  insisted  were  not  tithable. 
The  Court  decreed,  that  so  much  of  the  bill  as  prayed  an  account  of  pine- 
apples, grapes,  and  exotics  raised  in  hothouses  should  be  dismissed  with- 
out costs ;  and  that  the  rest  of  the  bill  should  be  dismissed  with  costs. 

Worral  v.  Miller,  1801 ;  Toll,  on  Tithes,  124,  n.  (/)-U 

Furze  is  not  liable  to  the  payment  of  tithe,  if  it  be  burnt  in  the  house 
of  a  parishioner,  who  occupies  land  in  the  parish  wherein  it  grew. 

Litt.  Rep.  368,  Rooket  v.  Gomersel.     j|  Sed  vide  Willis  v.  Stone,  supra.  || 

But  if  furze  be  sold,  it  is  liable  to  the  payment  of  tithe. 

Litt.  Rep.  368,  Rooket  v.  Gomersel. 

If  a  man  gather  green  peas  to  eat  in  his  house,  tithe  is  not  due  thereof. 

1  Roll.  Abr.  647,  pi.  11. 

But  if  a  man  gather  green  peas  to  sell,  or  to  feed  hogs  with,  they  are 
liable  to  the  payment  of  tithe. 

1  Roll.  Abr.  647,  pi.  12. 

||  And  potatoes  and  turnips  consumed  in  the  family  of  the  owner  are 
not  exempted  from  tithe. 

Williamson  v.  Ld.  Lonsdale,  5  Price,  25. |j 

In  one  modern  case,  it  seems  to  have  been  the  opinion  of  the  court, 
tnat  turnips  are  only  liable  to  pay  tithe  when  they  are  drawn. 
Bunb.  10,  Benson  v.  Watkins,  Ilil.  3  G.  1. 

But  in  a  more  modern  case  it  was  holden,  that  although  turnips  are 
not  drawn,  but  are  fed  off  the  ground,  tithe  is  due  thereof,  in  case  they 
are  eaten  by  unprofitable  cattle. 

Bunb.  314,  Swinfen  v.  Digby,  Hil.  5  G.  2. 

So,  it  hath  been  holden,  that  tithes  are  due  for  turnips  sown  after  corn, 
and  eaten  by  unprofitable  cattle. 
Crow  v.  Stoddart,  3  Burn's  E.  L.  465. 


24  TYTHES. 

(D)  Of  what  Things  a  mixed  Tithe  is  due. 

Such  tithe  as  arises  from  a  beast,  bird,  or  fowl,  is  called  a  mixed  tithe 

2  Inst.  G49  ;  1  Roll.  Abr.  635. 

Divers  things  are  by  the  ecclesiastical  law  liable  to  the  payment  of  a 
mixed  tithe,  which  by  the  common  law  are  not. 

2  Inst.  G21 ;  4  Mod.  344. 

The  design  under  this  head  is  to  show  of  what  things  a  mixed  tithe  is 
due  at  common  law. 

In  doing  this,  it  will  appear  that  some  things,  which  are  in  general 
exempted  therefrom,  become  by  custom  liable  to  the  payment  of  a  mixed 
tithe. 

1  Roll.  Abr.  635 ;  Copl.  3,  636,  pi.  7 ;  Cro.  Car.  339  ;  1  Vent.  5. 

It  will  also  appear,  that  some  things,  which  are  in  general  liable  thereto, 
are  under  particular  circumstances  exempted  from  the  payment  of  a  mixed 
tithe. 

1  Roll.  Abr.  645,  pi.  14,  pi.  16. 

But  wherever  any  fraud  is  used  to  bring  a  thing  under  a  circumstance, 
by  reason  of  which  it  would,  if  it  had  come  fairly  thereunder,  have  been 
exempted  from  the  payment  of  a  mixed  tithe,  it  is  by  such  fraud  rendered 
liable  thereto. 

1  Roll.  Abr.  645,  pi.  15,  646,  pi.  17. 

As  it  would  be  tedious  to  enumerate  all  the  things  which  are  liable  to 
the  payment  of  a  mixed  tithe,  only  those  shall  be  mentioned  concerning 
the  tithe  of  which  some  question  has  arisen :  but  from  those  which  shall 
be  mentioned  it  may  be  easily  collected  of  what  other  things  a  mixed 

tithe  is  due. 

1.  Of  the  Young  of  a  Beast. 

It  is  in  general  true,  that  tithe  is  due  of  the  young  of  a  beast  which  is 
not  ferce  naturce. 

But  tithe  is  not  due  of  the  young  of  a  hound,  an  ape,  or  of  any  beast 
which  is  kept  only  for  pleasure. 

Bro.  Dism.  pi.  20. 

Tithe  is  not  due  of  the  young  of  a  deer;  for  a  deer  is /era?  naturse. 

2  Inst.  651. 

And  for  the  same  reason,  tithe  is  not  due  of  the  young  of  a  coney.' 
1  Roll.  Abr.  635,  C.  pi.  3;  Cro.  Car.  339;  1  Ventr.  5. 

2.   Of  the  Eggs  and  Young  of  a  Bird  or  Fold. 

It  is  in  general  true,  that  tithe  is  due  of  the  young  of  a  bird  or  fowl 
-which  is  not  ferce  naturce,  unless  the  eggs  of  the  bird  or  fowl  have  before 
paid  tithe. 

1  Roll.  Abr.  G42,  pi.  6;  2  P.  Wms.  463. 

But  tithe  is  not  due  of  the  eggs  or  young  of  a  bird  or  fowl  which  is 
kept  only  for  pleasure. 

Bro.  Bism.  pi.  20. 

Tithe  is  not  due  of  the  eggs  or  young  of  a  partridge  or  pheasant ;  be- 
cause these  are  ferce  naturce. 

Moor,  599  ;  2  P.  Wms.  463. 

If  a  man  keep  pheasants,  whose  wings  are  clipped,  in  an  enclosed  wood, 


TYTHES.  25 

(D)  Of  what  Things  a  mixed  Tithe  is  due. 

and  from  their  eggs  hatch  and  bring  up  young  pheasants,  tithe  is  not  due 
of  the  young  pheasants,  although  none  were  paid  of  the  eggs ;  because 
the  old  pheasants  are  not  reclaimed,  and  would  go  out  of  the  enclosure 
if  their  wings  were  not  clipped. 
Roll.  Abr.  636,  pi.  5. 

It  was  heretofore  holden,  that  neither  the  eggs  nor  young  of  a  turkey 
are  liable  to  the  payment  of  tithe ;  because  turkeys  are  ferce  natures. 
Moor,  599,  Hugton  v.  Price. 

But  it  was  holden  in  a  modern  case,  that,  as  turkeys  are  at  this  day 
as  tame  as  hens  or  any  other  poultry,  tithe  is  due  of  the  eggs  or  young 
of  a  turkey. 

2  P.  Wins.  403,  Carleton  v.  Brightwell. 

Tithe  is  not  due  of  young  pigeons,  in  case  they  are  spent  in  the  house 
of  the  occupier  of  land  who  breeds  them. 

1  Roll.  Abr.  644,  Z,  pi.  4,  pi.  6 ;  1  Yentr.  5  ;  2  Mod.  77 ;  12  Mod.  47. 

But  if  young  pigeons  are  sold,  tithe  is  due  thereof. 
1  Roll.  Abr.  644,  Z,  pi.  5,  pi.  6. 

||  Tithe  is  not  due  of  the  eggs  or  young  of  ducks  in  a  decoy,  nor  for 
the  eggs  of  tame  ducks  kept  for  the  service  of  a  decoy. 
Gwill.  531.|| 

3.   Of  Wool. 

If  a  man  pay  the  tenth  lamb  as  titHe  at  Mark-tide,  and  at  Midsummer 
shear  the  other  nine  lambs,  tithe  is  due  of  the  wool ;  for  although  there 
were  only  two  months  between  the  time  of  paying  the  tithe  lambs,  which 
were  not  shorn,  and  the  shearing  of  the  residue,  there  is  a  new  increase. 

1  Roll.  Abr.  642,  R,  pi.  7 ;  Bunb.  90. 

If  a  man  shear  his  sheep  about  their  necks  at  Michaelmas,  to  preserve 
their  fleeces  from  the  brambles,  tithe  is  not  due  of  the  wool ;  for  it  appears 
that  this,  it  being  done  before  their  wool  is  much  grown,  could  not  be 
done  for  the  sake  of  the  wool. 

1  Roll.  Abr.  045,  pi.  16. 

If  a  man,  after  their  wool  is  much  grown,  shear  his  sheep  about  their 
necks,  in  order  to  preserve  them  from  vermin,  tithe  is  not  due  of  the 
wool. 

1  Roll.  Abr.  645,  pi.  16. 

If  a  man,  a  little  before  shearing-time,  cut  dirty  locks  of  wool  from  his 
sheep,  in  order  to  preserve  them  from  vermin,  tithe  is  not  due  of  the  wool. 
1  Roll.  Abr.  645,  pi.  17. 

But  if,  in  either  case,  more  wool  than  ought  to  have  been  cut  off  be 
fraudulently  cut  off,  tithe  is  due  of  the  wool. 
1  Roll.  Abr.  645,  pi.  15,  646,  pi.  17. 

||  If  sheep  are  removed  a  short  time  before  shearing-time  from  the  pa- 
rish where  they  are  fed  into  another  parish,  for  the  purpose  of  defrauding 
the  tithe-owner  of  his  tithe,  equity  will  make  him  account  for  such  tithe ; 
but  the  fraud  must  be  positively  alleged,  and  clearly  proved. 

1  Wood,  409  ;  3  Wood,  108  ;  Hall  v.  Maltby,  6  Price,  240.  || 

It  is  laid  down  in  one  case,  that  tithe  is  not  due  of  the  wool  of  a 
Vol.  X.— 4  C 


26  TYTHES. 

(E)  To  whom  Tithe  is  in  general  to  be  paid. 

sheep  killed  to  be  spent  in  the  house,  or  of  the  wool  of  a  sheep  which  dies 
of  itself. 

Lit.  Rep.  31,  Civil  v.  Scott,  Pasch.  3  Car.  1. 

But  in  another  case,  a  few  years  after,  it  is  laid  down,  that  tithe  is  due 
of  the  wool  of  a  sheep  killed  to  be  spent  in  the  house. 

1  Roll.  Abr.  646,  pi.  18 ;  Dent  v.  Salvin,  Pasch.  14  Car.  1. 

[Tithe  of  the  wool  of  lambs  is  due,  though  the  parson  may  have  re- 
ceived the  tithe  of  the  lambs  in  their  wool. 
Carthew  v.  Edwards,  3  Burn's  E.  L.  474.] 

4.   Of  divers  other  Things. 

Fish  taken  out  of  a  pond,  or  an  enclosed  river,  are  liable  to  the  pay- 
ment of  tithe. 

[This  is  by  no  means  clear.] 

But  no  tithe  is  due  of  fish  taken  out  of  the  sea,  or  an  open  river,  al- 
though they  are  taken  by  a  person  having  a  several  fishery ;  because  fish 
are  f era*  naturae. 

Noy,  108 ;  1  Roll.  Abr.  636,  pi.  4,  pi.  6,  pi.  7 ;  Cro.  Car.  339 ;  1  Lev.  179 ;  Sid. 
278  ;  ||and  see  1  Wood,  523;  2  Wood,  283.|| 

Honey  and  bees'  wax  are  liable  to  the  payment  of  tithe. 

Fitz.  N.  B.  51 ;  1  Roll.  Abr.  635,  C,  pi.  1 ;  Cro.  Car.  559.  ||Godolphin  ranks  these 
among  predial  tithes.     Rep.  Can.  389. || 

But  Avherever  tithe  of  the  honey  and  wax  of  bees  has  been  paid,  no 
tithe  is  due  of  the  bees ;  ||  for  they  ureferce  naturce.\\ 
Cro.  Car.  404,  Anon. 

Tithe  is  not  due  of  the  milk  spent  in  the  house  of  a  farmer,  in  case 
the  house  stands  in  the  parish  wherein  the  cows  are  milked. 

Ld.  Raym.  129,  Scole  v.  Lowther. 

||  A  claim  for  tithe  of  mortuaries  was  made  in  a  late  case ;  but  it  was 
not  decided  on. 

2  Price,  295. || 

(E)  To  whom  Tithe  is  in  general  to  be  paid. 

It  is  laid  down  in  divers  books,  that  only  spiritual  persons  were  at  the 
common  law  capable  of  receiving  tithes ;  because  tithes  are  an  ecclesias- 
tical inheritance. 

2  Rep.  45  ;  11  Rep.  13  ;  Cro.  Eliz.  293,  599,  763;  Hob.  296. 

As  a  layman  had  not  before  the  32  II.  8,  c.  7,  any  remedy  in  the  case 
of  subtraction  of  tithe,  it  follows  that  a  layman  was  not  at  the  common 
law  capable  of  acquiring  a  right  to  tithe ;  for  wherever  there  is  a  right, 
there  must  be  a  remedy  for  the  recovery  thereof. 

2  Rep.  44;  2  Inst.  648 ;  Cro.  Eliz.  512. 

The  king  was,  indeed,  at  the  common  law  capable  of  receiving  tithes, 
becauso  he  is  persona  mixta  ;  but  he  could  only  receive  them  in  his  spi- 
ritual capacity,  and  not  as  belonging  to  a  manor. 

Cro.  Eliz.  293,  599,  763  ;  2  Rep.  44. 

It  is  laid  down,  that  the  king's  grantee,  although  a  layman,  was  at  the 
common  law  capable,  by  virtue  of  the  king's  prerogative,  of  receiving 
tithe. 

2  Rep.  14.  Bishop  of  Winchester's  case. 


TYTHES.  27 

(F)  To  whom  Parochial  Tithes  are  to  he  paid. 

But  it  seems  to  be  the  better  opinion,  that  as  the  king  himself  is  only 
capable  of  receiving  tithe  in  his  spiritual  capacity,  and  not  by  virtue  of 
his  prerogative,  the  capacity  of  receiving  tithe,  being  personal,  cannot 
be  conveyed  to  a  layman. 

2  Roll.  Abr.  G55,  J,  pi.  2  ;  Hardr.  315. 

A  layman  could  at  the  common  law  have  prescribed,  that  in  considera- 
tion of  an  annual  sum  of  money  to  be  paid  to  the  parson,  for  all  tithes 
arising  within  a  manor,  he  was  entitled  to  the  tenths  of  all  corn  growing 
in  the  manor. 

Cro.  Eliz.  599,  7G3;  Bro.  Dism.  pi.  1,  pi.  5  ;  2  Rep.  44. 

At  this  day  a  layman  is  capable  of  receiving  tithes ;  for  the  tithes  be- 
longing to  many  churches,  and  some  portion  of  tithes,  which  upon  disso- 
lution of  monasteries  were  by  divers  statutes  vested  in  the  crown,  are 
become  lay-fees,  and  have  all  the  properties  of  temporal  inheritances. 

1  Inst.  159  ;  11  Rep.  13  ;  Fin.  Rep.  309. 

(F)  To  whom  Parochial  Tithes  are  to  he  paid. 
Before  the  decretal  epistle  of  Pope  Innocent  the  Third,  which  was 
written  about  the  year  1200,  and  which,  from  its  being  dated  at  Lateran, 
has  been  often  mistaken  for  a  decree  of  the  council  of  Lateran,  holden 
not  many  years  before,  parochial  tithes  were  not  appropriated  to  any 
spiritual  person  in  particular ;  but  it  was  in  the  power  of  every  person  to 
pay  tithes  to  such  spiritual  person  or  corporation  as  he  pleased. 

2  Inst.  G41,  653  ;  Bro.  Dism.  pi.  21 ;  Hob.  296. 

By  that  epistle,  which  laments  the  inconveniencies  arising  from  this 
power,  it  was  directed,  that,  for  the  time  to  come,  the  tithes  of  all  parishes 
should  be  paid  to  the  persons  having  the  cure  of  souls  in  the  respective 
parishes,  who  were  called  rectors. 

2  Inst.  641. 

That  epistle,  which  would  not  have  been  in  itself  obligatory,  being 
founded  in  reason  and  justice,  was  well  received,  and  soon  became  part 
of  the  law  of  the  land  ;  and  in  consequence  thereof  rectors  became  enti- 
tled to  all  the  tithes,  except  portions  of  tithes,  arising  in  their  respective 

parishes. 
2  Inst.  641. 

As  many  advowsons  had,  before  that  decretal  epistle  was  written,  been 
granted  to  divers  religious  persons,  as  to  abbots,  priors,  single  deans,  and 
single  prebendaries,  and  their  successors,  the  practice  of  collating  them- 
selves to  the  churches  thereto  belonging,  and  of  undertaking  personally 
the  cure  of  souls,  was,  for  the  sake  of  keeping  the  tithes  in  their  own 
hands,  soon  after  introduced.  As  this  practice  was  followed  by  their 
successors,  the  tithes  of  many  parishes  were  kept  perpetually  in  their 
own  hands.  In  process  of  time,  in  order  to  avoid  a  multiplicity  of  insti- 
tutions and  inductions,  such  persons  obtained  licenses,  that  they  and  their 
successors  might  be  perpetual  incumbents  of  the  churches. 

Spelm.  Eng.  Works,  137. 

In  this  way  appropriation  to  churches  began  ;  but  churches  were  at  that 
time  only  appropriated  to  such  single  spiritual  persons  as  did  in  person 
administer  the  sacraments  and  perform  other  divine  service. 

Spelm.  Eng.  Works,  138. 

Deans  and  chapters  afterwards  obtained  licenses  for  the  appropriation 


28  TYTHES. 

(F)  To  -whom  Parochial  Tithes  are  to  be  paid. 

of  churches  belonging  to  their  advowsons  ;  but  as  they,  being  a  body  cor- 
porate, could  not  jointly  do  the  duty  of  a  parish  priest,  and  as  no  one  in 
particular  was  bound  to  do  it,  a  deputy,  called  a  vicar,  was  appointed  un- 
der their  common  seal  to  do  that  duty :  but  the  person  so  appointed  was 
usually  a  member  of  the  spiritual  corporation  to  which  the  church  was 
appropriated. 

Spelm.  Eng.  Works,  138. 

The  practice  of  appointing  vicars  being  once  introduced,  prioresses  and 
nuns  obtained  the  like  licenses  for  the  appropriation  of  the  churches  be- 
longing to  their  advowsons ;  and  they  likewise  appointed  vicars,  and  took 
the  profits  of  the  advowsons  to  themselves. 

Spelm.  Eng.  Works,  138. 

Encouraged  by  these  examples,  the  abbots,  priors,  single  deans,  and 
single  prebends,  who  had  before  performed  divine  service  in  person,  like- 
wise appointed  vicars. 

Spelm.  Eng.  Works,  138. 

It  seems  probable  that  vicars  were  not  at  first  endowed  with  any  part 
of  the  tithes  belonging  to  their  respective  churches,  but  received  a  cer- 
tain yearly  sum  of  money,  by  way  of  a  salary ;  and  it  appears  that  the 
sum  received  by  some  vicars  was  very  small. 

For  by  the  15  R.  2,  c.  6,  after  reciting  that  divers  damages  and  hin- 
dcrances  have  happened,  and  daily  do  happen,  to  the  parishioners  of 
divers  places  by  the  appropriation  of  the  benefices  of  such  places,  it  is 
agreed  and  assented,  "  That  in  every  license,  from  henceforth  to  be  made 
in  the  Chancery,  of  the  appropriation  of  any  parish  church,  it  shall  be 
expressly  contained  and  comprised,  that  the  diocesan  of  the  place  upon 
the  appropriation  of  such  churches  shall  ordain,  according  to  the  value 
of  such  churches,  a  convenient  sum  of  money  to  be  paid  and  distributed 
yearly  of  the  fruits  and  profits  of  the  same  churches,  by  those  that  shall 
Lave  the  said  churches  in  proper  use,  and  by  their  successors,  to  the  poor 
parishioners  of  the  said  churches,  in  aid  of  their  living  and  sustenance 
for  ever ;  and  also  that  the  vicar  be  well  and  sufficiently  endowed." 

Afterwards,  by  the  4  H.  4,  c.  12,  it  is  ordained,  "  That  from  hence- 
forth in  every  church  appropriated,  or  to  be  appropriated,  a  secular  per- 
son be  ordained  perpetual  vicar,  canonically  instituted  and  inducted  to 
the  same,  and  conveniently  endowed  by  the  discretion  of  the  ordinary,  to 
do  divine  service,  to  inform  the  people,  and  to  keep  hospitality  there ; 
and  that  no  religious  person  be  in  any  wise  made  vicar  in  any  church 
appropriated,  or  to  be  appropriated,  for  the  time  to  come." 

As  it  is  only  provided  by  the  4  II.  4,  c.  12,  that  vicars  shall  be  en- 
dowed at  the  discretion  of  the  ordinary,  it  has  of  course  happened,  that 
the  right  of  a  vicar  to  tithes  is  very  different  in  different  parishes. 

In  divers  parishes,  the  vicars  are  only  endowed  with  some  particular 
tithes  arising  in  their  respective  parishes. 

Cro.  Eliz.  4G2 ;  2  Roll.  Abr.  335,  pi.  0. 

In  other  parishes,  the  vicars  are  endowed  with  all  tithes  arising  in 
their  respective  parishes,  except  such  as  are  reserved  in  the  deeds  of  en- 
dowment. 

2  Roll.  Abr.  335,  pi.  1,  pi.  4. 

In  other  parishes,  the  vicars  are  endowed  with  all  small  tithes  arising 
in  their  respective  parishes. 


TYTHES.  29 

(F)  To  whom  Parochial  Tithes  are  to  be  paid. 

It  follows,  that  as  the  right  of  a  vicar  to  tithes  always  depends  upon 
the  endowment  of  his  vicarage,  he  ought,  whenever  his  right  is  questioned, 
to  show  himself  entitled  by  endowment  to  the  tithe  he  claims. 

Cro.  Eliz.  G33  ;  2  Bulst.  27  ;  Bunb.  7,  72,  160. 

But,  although  a  vicar  cannot  produce  the  deed  of  endowment  if  he  can 
show  that  he  and  his  predecessors  have  constantly  received  the  tithe  by 
him  claimed,  this  is  evidence  that  he  has  a  right  by  endowment  to  tithe. 

2  Keb.  729  ;  Bunb.  7,  169. 

|| In  questions  between  the  rector  and  vicar,  the  onus  of  proving  his 
right  to  tithe  falls  on  the  vicar  ;  and  he  must  show  either  an  endowment, 
or  prescription  which  raises  a  presumption  of  one.  But  when  the  vicar 
produces  his  endowment,  then  the  prima  facie  title  to  the  extent  of  the 
endowment  is  in  favour  of  the  vicar ;  and  if  the  rector  would  claim  any 
article  of  tithes  within  it,  the  07ius  probandi  is  thrown  on  him,  and  he 
must  make  out  his  case  by  strict  proof.  He  must  give  such  evidence  as 
will  raise  a  presumption  that  the  parties  had  come  to  some  fresh  agree- 
ment, that  some  different  arrangement  as  to  the  distribution  of  the  tithes 
had  been  made,  between  the  date  of  the  endowment  and  the  disabling 
statutes  13  Eliz.  c.  10,  and  13  Eliz.  c.  20. 

Awdry  v.  Smallcomb,  Gwill.  1528  ;  and  see  Dorinan  v.  Curry,  4  Price,  109,  and 
Gwill.  1168;  Williamson  v.  Lonsdale,  Dan.  171 ;  Gwill.  1860,  Williamson  v.  Thomp- 
son, 9  Price,  186. 

And  where  the  plaintiff,  a  lay  impropriator,  and  his  ancestors  had  had 
uninterrupted  enjoyment  of  the  tithe  of  hay,  and  there  was  no  evidence 
of  any  perception  of  it  or  composition  for  it  by  the  vicar,  but  an  endow- 
ment of  the  vicarage  with  this  tithe  was  shown  in  1253 ;  the  court  held, 
that  it  might  be  presumed,  in  favour  of  this  modern  enjoyment,  that  the 
tithe  had  been  conveyed  into  lay  hands  prior  to  the  disabling  statutes. 

Lady  Dartmouth  v.  Koberts,  16  East,  334  ;  and  see  4  Price,  355. || 

In  many  deeds  of  endowment  of  vicarages  a  power  is  reserved  to  the 
archbishop  to  increase  the  tithes  of  the  respective  vicarages  ;  and  if  such 
power  be  not  reserved,  an  augmentation  of  the  tithes  may  be  made  with 
the  consent  of  or  upon  citing  all  parties,  but  not  without  notice  or  citation. 

Hardr.  329,  Twisse  v.  Blunt. 

In  consequence  of  this  it  has  been  holden,  that  if  a  vicar  and  his  pre- 
decessors have  for  a  long  time  received  a  tithe  which  they  were  not  enti- 
tled to  under  the  deed  of  endowment,  this,  although  the  deed  of  augmen- 
tation be  not  produced,  is  evidence  that  the  vicarage  has  at  some  time 
been  augmented  with  the  tithe. 

Hardr.  329,  Twisse  v.  Blunt. 

1 1 And  a  particular  and  minute  enumeration  of  several  articles  in  the 
endowment  does  not  exclude  the  vicar's  right  to  other  small  tithes  not 
mentioned  in  it. 

Manby  v.  Curtis,  2  Price,  285. 

And  in  a  case  where  the  endowment  did  not  express  "small  tithes," 
but  the  vicar  had  been  in  constant  perception  of  all  small  tithes,  except 
agistment  (which  was  a  tithe  not  formerly  paid  in  the  north,  where  the 
living  was  situate,)  and  turnips  and  potatoes,  (which  were  not  grown  in 
this  country  at  the  time  of  the  endowment ;)  it  appearing  that  the  impro- 
priate rectors  had  never  claimed  more  than  tithe  of  corn  and  grain,  and 

c2 


30  TYTHES. 

(F)  To  whom  Parochial  Tithes  are  to  be  paid. 

that  there  was  a  pension  payable  to  the  impropriators  out  of  the  vicarage, 
the  court  decreed,  in  favour  of  the  vicar,  an  account  of  the  tithe  of  agist- 
ment, turnips,  and  potatoes.  Gibbs,  C.  B.,  in  delivering  judgment,  ob- 
served, that  where  it  appears  that  the  vicar  has  uniformly  received  all 
the  small  tithes,  there  can  be  no  difficulty  in  his  making  out  his  claim. 
But  that  the  cases  have  gone  further,  deciding  that  where  a  title  is  made 
out  by  the  vicar  to  all  small  tithes,  he  is  entitled  to  whatever  tithes  are 
legally  of  that  description,  although  not  before  paid ;  and  where  tithes 
of  modern  introduction  or  other  small  tithes  have  not  been  received,  it 
will  be  presumed  it  was  because  no  occasion  occurred :  that  it  had  been 
again  and  again  determined,  that  tithes  of  modern  introduction  ar§  vica- 
rial tithes  :  that  if  a  vicar  is  found  receiving  small  tithes,  and  no  one  else 
receiving  any  portion  of  the  small  tithes,  it  is  to  be  presumed  he  is  en- 
dowed of  all;  and  that  further,  where  the  rector  has  received  some  small 
tithes  and  the  vicar  all  the  others,  it  has  been  holden  that  a  mistake  may 
account  for  the  rector's  receipt. 

Kennicott  v.  Watson,  2  Price,  250,  n.  ;  and  see  Byam  v.  Booth,  2  Price,  231 ;  Cun- 
llffe  v.  Taylor,  Ibid.  329  ;  Williams  v.  Price,  4  Price,  156 ;  Scott  v.  Lawson,  7  Price, 
267  ;  Leathes  v.  Newitt,  4  Price,  374. 

And  proof  of  immemorial  perception  by  the  vicar  of  a  particular  tithe 
will  establish  his  right  to  it,  when  the  rector  shows  no  perception  on  his 
part,  even  although  the  vicar's  endowment  actually  states  this  species  of 
tithe  to  belong  to  the  rector ;  for  in  such  case  a  subsequent  endowment 
may  be  presumed. 

Parsons  v.  Bellamy,  4  Price,  190. 

Where  the  plaintiff,  as  lessee  of  the  impropriate  rectory  of  Bedfont, 
which  had  been  granted  by  Queen  Elizabeth  under  the  words,  "  omnes  de- 
cimal nostras  garbarum  et  granorum"  claimed  tithe  of  seed-tares  in  a 
suit  against  a  parishioner,  and  the  vicar  ;  and  it  appeared  that  the  gran- 
tees had  always  received  this  tithe,  and  that  the  vicar  had  received  all 
small  tithes,  and  also  the  tithes  of  tares  cut  green  and  of  hay,  and 
no  endowment  was  produced,  the  court  held,  that  every  thing  that  was 
vested  in  the  crown  passed  to  the  grantees  under  the  grant  of  Elizabeth, 
and  that  they  were  entitled  to  the  tithe  claimed  as  a  tithe,  "garbarum." 
They  also  considered  the  tithe  as  a  great  tithe :  but  whether  it  were  great 
or  small,  the  vicar  could  not  be  entitled  to  it,  since  he  had  never  received 
it ;  and  his  endowment,  which  was  presumed  from  perception,  must  also 
be  limited  by  it. 

Daws  v.  Benn,  1  Barn.  &  C.  751 ;  3  Dow.  &  R.  122 ;  Gwill.  2061,  S.  C.|| 

Upon  the  dissolution  of  monasteries,  the  tithes  of  all  churches  appro- 
priated to  the  monasteries,  and  all  portions  of  tithes  belonging  to  them, 
were  by  divers  statutes  vested  in  the  crown. 

11  Rep.  13  ;  Hob.  308. 

Much  the  greater  part  of  these  tithes  have  been  since  granted  in  fee 
by  the  crown. 

All  tithes  so  granted,  except  such  as  have  been  since  given  to  the  re- 
spective churches,  are  to  this  day  due  to  the  grantees  of  the  crown,  who 
are  called  impropriators. 

It  is  in  general  true,  that  a  chaplain  or  a  curate  is  not  entitled  to  tithe. 

[That  a  curate  may  hold  tithes,  was  determined  in  the  Exchequer  in  1790,  in  Tam- 
berlaine  v.  Humphreys. J      ||Gwill.  1345;  sed  vide  Bunb.  273. || 

A  suit  being  brought  for  tithes  by  a  chaplain  to  a  chapel  of  ease,  which 


TYTHES.  31 

(F)  To  whom  Parochial  Tithes  are  to  be  paid. 

was  neither  presentative  nor  donative,  it  was  holden,  that  he  was  not  en- 
titled to  any  tithe. 
Lit.  Rep.  72,  Anon 

It  was  insisted,  that  by  the  custom  of  the  parish,  the  curate,  after  be- 
ing appointed  by  the  rector,  was  entitled  to  divers  kinds  of  tithes ;  but  it 
was  holden  that  these  could  not  be  due  to  him,  because  the  rector  might 
remove  him  at  pleasure. 

Noy,  15,  Bott  v.  Brabalon;  Bunb.  273,  Price  v.  Pratt.  ||  Gwill.  G77  ;  2  Eag.  & 
Toun.  G.|| 

A  bill  being  brought  by  a  perpetual  curate  for  the  recovery  of  divers 
small  tithes,  it  appeared  that  the  chapel  of  which  he  was  curate  was  an- 
nexed to  the  church  of  Hemels  Hempstead  ;  that  he  was  nominated  thereto 
for  life,  by  the  vicar  of  Hemels  Hempstead,  who,  in.  the  instrument  of 
nomination,  had  given  him  the  small  tithes  of  the  chapelry,  with  a  power 
to  sue  him  for  the  same  in  the  vicar's  name ;  and  that  he  was  licensed 
by  the  bishop.  It  was  holden  that  the  plaintiff  had  no  right  to  the  tithes, 
because  he  had  not  a  permanent  interest  in  them  ;  for  that  an  appoint- 
ment to  a  curacy,  although  expressly  made  for  life,  is  revocable  by  the 
common  law,  without  any  cause  being  shown ;  and  by  the  ecclesiastical 
law,  upon  good  cause  being  shown. 

But  a  curate,  who  comes  in  by  institution  from  the  ordinary,  may  be 
entitled  to  tithes. 

An  impropriator  gave  the  tithes  of  a  parish,  all  which  belonged  to  his 
rectory,  by  will  to  the  maintenance  of  the  minister  of  the  parish  for  ever  ; 
but  did  not  give  either  the  tithes,  or  the  power  of  nominating  the#  minis- 
ter, to  any  person.  This  devise  being  void  in  law,  because  it  was  to  no 
certain  person,  the  heir  at  law  nominated  A  to  be  the  minister.  After- 
wards, upon  the  supposition  of  a  lapse  to  the  crown,  B  was  presented, 
instituted,  and  inducted.  A  question,  to  whom  the  tithes  of  the  parish 
belonged,  coming  before  a  court  of  equity,  it  was  decreed,  that  as  B  came 
in  by  institution  from  the  ordinary,  although  he  was  not,  strictly  speak- 
ing, either  rector  or  vicar,  they  were  due  to  him. 
2  Ch.  Ca.  19,  31,  Perne  v.  Oldfield. 

Personal  tithes  are  to  be  paid  in  the  parish  wherein  the  person  who  is 
to  pay  them  lives. 
Sheph.  Abr.  1013. 

If  cattle  for  which  an  agistment  tithe  is  due  have  been  sometimes  de- 
pastured in  one  parish,  and  at  other  times  in  another,-  tithe  must  be  paid 
in  each  parish,  in  proportion  to  the  time  they  were  therein  depastured. 

Bro.  Dism.  pi.  16. 

By  the  2  Ed.  6,  c.  13,  §  3,  it  is  enacted,  "  That  every  person  which 
shall  have  any  beasts,  or  other  tithable  cattle,  going,  feeding,  or  depasturing 
in  any  waste  or  common,  whereof  the  parish  is  not  certainly  known,  shall 
pay  tithes  for  the  increase  of  the  said  cattle  to  the  parson,  vicar,  proprietor, 
portionary,  owner,  or  other  their  farmers  or  deputies  of  the  said  parish, 
hamlet,  town,  or  other  place,  where  the  owner  of  the  said  cattle  dwelleth." 

||  This  clause  does  not  extend  to  agistment  tithe.  Ellis  v.  Saul,  1  Anst.  332  :  Gwill. 
1326 ;  2  Eag.  &  Youn.  366  ;  sed  vide  Ellis  v.  Fermor,  Gwill.  1022 ;  3  Eag.  &  Youn. 
1244.|| 

The  tithe  of  lambs  is  to  be  paid  in  the  parish  wherein  the  sheep  yean, 
although  the  sheep  have  been  fed  in  two  or  more  parishes. 
Bunb.  139,  Boys  v.  Ellis ;  12  Mod.  497. 


32  TYTHES. 

(H)  Of  the  Right  to  a  portion  of  Tithes  in  a  Parish. 

||  But  if  the  sheep  are  fraudulently  removed  just  before  the  lambing 
season,  to  avoid  tithe,  equity  will  make  the  owner  account  to  the  parson 
of  the  parish  whence  they  are  removed  for  the  tithe. 

1  Wood.  469;  3  Wood,  108  ;  Hall  v.  Malthy,  6  Price,  240 ;  Gwill.  1888  ;  3  Eag.  & 
Youn.  928.11 

No  predial  tithe,  which  would,  if  the  corn  or  other  thing  from  which  it 
arises  had  been  severed  before  the  death  of  the  rector  or  vicar  of  the  parish, 
have  been  due  to  the  rector  or  vicar,  is  due  to  the  executor  of  the  rector 
or  vicar ;  but  the  person  who  succeeds  to  the  benefice  is  entitled  thereto. 

1  Roll.  Abr.  G55,  pi.  3  ;  2  Bulstr.  184. 

(G)  To  whom  extra-parochial  Tithes  are  to  he  paid. 
All  tithes,  arising  in  an  extra-parochial  place,  are,  by  the  canon  law, 
to  be  paid  to  the  bishop  of  the  diocese  in  which  the  place  lies. 

2  Inst,  G47. 

But  by  the  common  law  all  such  tithes  are  to  be  paid  to  the  king. 

Bro.  Dism.  pi.  10  ;  2  Inst.  647;  2  Roll.  Abr.  657,  pi.  2,  pi.  5. 

As  the  appropriation  of  tithes,  in  consequence  of  the  decretal  epistle 
of  Pope  Innocent  the  Third,  extended  only  to  parochial  tithes,  all  the 
tithes  of  extra-parochial  places  continued  to  be  due  to  the  king. 

Ante,  p.  27  ;  Cro.  Elk.  512. 

And  consequently,  all  extra-parochial  tithes,  of  which  no  grant  has 
been  made,  are  at  this  day  due  to  the  king. 

||  And  this  right  is  not  confined  to  such  extra-parochial  lands  as  were 
formerly  forest  lands. 

Attorney-General  v.  Lord  Eardley,  8  Price,  39 ;  Gwill.  1943  ;  3  Eag.  &  Youn.  986.  || 

(II)  Of  the  Right  to  a  Portion  of  Tithes  in  a  Parish. 

Before  the  tithes  of  parishes  were,  in  consequence  of  the  decretal  epistle 
of  Pope  Innocent  the  Third,  appropriated  to  the  persons  having  cure  of 
souls  in  the  respective  parishes,  it  was  a  common  practiceto  grant  the 
tithes  of  a  whole  manor,  or  of  a  particular  farm,  to  any  spiritual  person, 
or  to  any  spiritual  corporation,  and  to  his  and  their  successors. 
Ante,  p.  27 ;  2  Inst.  641 ;  Bunb.  190. 

A  stop  was,  by  the  appropriation  of  parochial  tithes,  put  to  this  prac- 
tice ;  but  as  the  right  to  tithes,  which  had  been  before  thus  granted,  con- 
tinued in  the  spiritual  person  or  corporation,  and  in  his  and  their  succes- 
sors, (the)  tithes  thus  granted,  in  order  to  distinguish  them  from  the  other 
tithes'  of  the  parish,  have  been  always  called  portions  of  tithes. 

Some  portions  of  tithes  do,  at  this  day,  continue  in  the  hands  of  the 
successor  to  the  spiritual  person  or  corporation  to  whom  they  were  at 
first  granted. 

Others,  which  came  to  the  crown  upon  the  dissolution  of  monasteries, 
are  at  this  day  in  the  hands  of  the  king,  or  the  grantees  of  the  crown. 

Hence  it  frequently  happens,  that  a  spiritual  person  has  a  right  to  a 
portion  of  tithes,  in  a  parish  of  which  he  is  neither  rector  nor  vicar  ;  and 
that  an  impropriator  has  a  right  to  a  portion  of  tithes  in  a  parish  of  which 
he  is  not  impropriator. 

2  Inst  641,  642,  653. 

|j  In  questions  between  a  rector  and  portionist,  touching  the  extent  of 
their  respective  rights,  the  rector  is  entitled  to  stand  upon  his  common  law 


TYTHES.  33 

(Ivj  »Vhat  Tithes  are  to  be  deemed  small  Titho 

right  to  all  tithes,  and  to  throw  the  onus  probandi  on  tne  portionist  of  show- 
ing an  exclusive  right  to  a  certain  portion  of  them.  But  if  there  has  been 
no  perception  on  the  part  of  the  rector,  then  he  is  not  in  condition  to  throw 
the  07Uis  probandi  on  the  portionist :  and  if  the  portionist  clearly  shows  that 
he  is  entitled,  under  grants  from  the  crown  of  possessions  of  a  dissolved 
monastery,  to  some  of  the  great  tithes  of  the  rectory,  but  cannot  show  to 
what  specific  portion  ;  and  the  rector,  on  the  other  hand,  has  had  no  per- 
ception, and  cannot  show  what  portion  of  the  tithes  belonged  to  the  rectory, 
and  what  to  the  monastery,  the  court  has  no  means  of  assisting  either  party 
to  avail  himself  of  his  title.  And  in  such  case,  the  court  can  only  retain 
the  rector's  bill  to  give  him  an  opportunity  of  taking  an  issue,  or  proceed- 
ing by  commission,  ejectment,  or  action  on  the  statute. 

Ferrars  v.  Pellat,  Gwill.  1602;  4  Wood,  331,  S.  C;  Boulton  v.  Richards,  9  Price, 
671;  3  Eag.  &  You.  1068.|| 

(I)  By  whom  Tithe  is  to  be  paid. 

It  has  been  holden,  that  the  owner  of  the  cattle  is  liable  to  pay  the  tithe 
due  for  depasturing  them. 
Hard.  181,  Pory  v.  Wright,  Pasch.  13  Car.  2. 

But  in  a  modern  case  in  the  Court  of  Exchequer,  it  was  holden,  that 
only  the  occupier  of  the  land  is  liable  to  pay  tithe  for  depasturing  cattle, 
although  the  cattle  are  the  property  of  a  stranger. 

Bunb.,  3  Underwood  v.  Gibson,  Hil.  2  G.  1.     [Supra.] 

And  in  a  note  at  the  bottom  of  the  latter  case  it  is  said  to  have  been 
settled,  in  the  case  of  Fisher  and  Leman,  Mich.  7  G.  1,  that  in  general, 
only  the  occupier  of  the  land  is  liable  to  an  agistment  tithe  ;  but  that  in 
the  case  of  a  common  the  owner  of  the  cattle  is  liable  thereto,  because  the 
owner  of  the  soil  has  no  profit  from  depasturing  the  cattle. 

It  is  laid  down  in  one  case,  that  the  person  who  buys  corn  of  the  grower 
is  not  liable  to  pay  the  tithe  thereof,  because  he  may  not  be  known  to  the 
parson. 

Noy,  150,  Baker's  case,  Trin.  44  Eliz. 

But  it  is  in  another  case  laid  down,  that  the  vendee  of  standing  corn  is 
liable  to  pay  the  tithe  thereof. 

Cro.  Ja.  362,  Moyle  v.  Ewer,  Mich.  10  Jac.  1. 

And  the  latter  seems  to  be  the  better  opinion :  for  in  two  other  cases  it 
is  laid  down,  that  the  vendor,  who,  after  selling  his  corn,  had  severed  it  by 
order  of  the  vendee,  should  pay  tithe  thereof,  because  it  was  sold  in  a  secret 
manner. 

Brown,  34;  Hele  v.  Fretenden,  2  Bulstr.  181. 

From  whence  it  may  be  fairly  inferred,  that  if  the  corn  had  been  sold  in 
an  open  manner,  the  vendee  would  have  been  liable  to  pay  tithe  thereof. 

(K)  What  Tithes  are  to  be  deemed  small  Tithes. 

As  the  vicars  are  in  many  parishes  endowed  with  all  small  tithes, 
questions  frequently  arise,  whether  the  tithes  of  certain  things  are  small 
tithes. 

But  such  questions  can  only  arise  concerning  things  of  which  a  predial 
tithe  is  due ;  for  it  is  universally  agreed,  that  every  personal  and  every 
mixed  tithe  is  a  small  tithe. 

Vol.  X.— 5 


34  TYTHES. 

(K)  What  Tithes  are  to  be  deemed  small  Tithes. 

It  was  the  opinion  of  Holt,  Chief  Justice,  that  in  order  to  distinguish 
whether  the  tithe  of  a  particular  thing  be  a  great  or  small  tithe,  regard  must 
be  had  to  the  place  where  the  thing  from  which  it  arises  grows ;  for  that 
if  corn  grow  in  a  garden,  the  tithe  thereof  is  a  small  tithe  ;  and  vice  versa, 
that  if  a  thing,  the  tithe  of  which  is  in  general  a  small  tithe,  grow  in  a  field, 
the  tithe  thereof  is  a  great  tithe. 

12  Mod.  41 ;  Wharton  v.  Lisle,  3  Lev.  305;  Skin.  341. 

But  it  was  holden  by  the  opinion  of  the  other  Justices,  Eyre,  Dolben, 
and  Gregory,  that  the  nature  of  the  thing  from  which  the  tithe  arises  is 
only  to  be  considered  ;  and  that  the  tithe  of  corn,  although  grown  in  a 
garden,  would,  agreeably  to  what  is  laid  down  in  Moor,  909,  be  a  great 
tithe. 

It  wras,  however,  said  in  this  case  by  Dolben  and  Gregory,  that  if  a 
thing,  the  tithe  of  which  is  in  general  a  small  tithe,  should  be  grown  in  the 
greater  part  of  a  parish,  the  tithe  thereof  would,  agreeably  to  what  is  laid 
down  in  Hut.  78,  be  a  great  tithe. 

But  Eyre  was  of  a  different  opinion  as  to  this  point. 

The  opinion  of  Holt,  Chief  Justice,  was  contrary  to  what  is  laid  down 
in  divers  books;  and  the  opinion  of  the  three  justices  has  been  adhered  to 
in  two  modern  cases. 

It  is  in  divers  books  laid  down,  that  the  tithe  of  saffron  is  a  small  one, 
although  a  field  of  forty  acres  be  planted  therewith. 

Cro.  Eliz.  4G7;  Bedingfield  v.  Feak,  Hut.  78;  Moor,  909. 

In  one  of  the  modern  cases  the  question  was,  whether  the  tithe  of  pota- 
toes, planted  in  fields  in  a  parish  to  the  amount  of  three  hundred  acres,  is 
a  small  tithe  ?  It  was  holden  to  be  so.  And  by  Lord  Hardwicke,  Chan- 
cellor— It  seems  to  me,  that  in  the  case  of  Wharton  and  Lisle,  Holt,  Chief 
Justice,  did  ultimately  acquiesce  in  the  opinion  of  the  other  three  judges ; 
for  if  he  had  not,  the  judgment  would  scarcely,  as  was  done,  have  been 
given  in  his  absence,  and  upon  the  first  argument.  The  distinction  betwixt 
a  great  and  small  tithe  was  at  first  founded  upon  the  quantity  of  the  thing 
from  which  it  arose.  Thus,  the  tithes  of  corn,  and  some  other  things, 
were  called  great  tithes,  because  these  things  usually  grew  in  large  quan- 
tities. On  the  other  hand,  the  tithes  of  flax,  and  some  other  things,  which 
generally  grew  in  small  quantities,  were  called  small  tithes.  Whenever 
the  cultivation  of  a  new  thing  has  been  introduced,  the  method  has  been 
to  denominate  the  tithe  thereof  great  or  small,  from  its  similitude  to  other 
things,  the  tithes  of  which  are  great  or  small  ;  but  it  would  be  productive 
of  great  uncertainty  to  hold,  that  a  tithe,  which  has  once  obtained  the  de- 
nomination of  great  or  small,  should  be  liable  to  a  new  denomination  from 
the  quantity  of  the  thing  from  which  it  arises,  or  from  the  place  where  it 
grows.  It  has  been  said,  that  if  neither  the  quantity  of  the  thing,  nor  the 
place  in  which  it  grows,  ought  to  be  regarded,  the  value  of  great  tithes 
may,  by  growing  only  those  tilings  in  a  parish  which  are  liable  to  the 
payment  of  small  tithes,  be  reduced  to  almost  nothing.  This  is  very  true, 
and  it  is  an  inconvenience  ;  but  it  is  one  which  must  be  submitted  to  by 
all  who  have  estates  in  tithes,  because  it  arises  from  the  transitory  and 
fluctuating  nature  of  such  estates. 

MS.  Rep.  Smith  v.  Wyatt,  Trio.  It",  (J.  2  ;  2  Atk.  365,  S.  C. 

In  the  other  modern  case,  it  was  laid  down  by  Lord  Henley,  Keeper. 


TYTHES  35 

(K)  What  Tithes  are  to  be  deemed  6mall  Titncs 

that  the  difference  betwixt  a  great  and  small  tithe  depends  entirely  upon 
the  nature  of  the  thing  from  which  it  arises. 

MS.  Rep.  Sims  v.  Barnett,  Mich.  1  G.  3. 

It  is  said  to  have  been  ruled  at  an  assize,  that  the  tithe  of  clover  seed 
is  a  great  tithe,  because  clover  seed  is  a  species  of  grain. 

Skin.  3-11. 

But  it  has  been  decreed  by  the  Court  of  Exchequer,  that  the  tithe  of 
clover  seed  is  a  small  tithe. 

Bunb.  344. 

It  has  been  holden,  that  the  tithe  of  flax  is  a  small  tithe. 

1  Roll.  Abr.  643,  pi.  11 ;  12  Mod.  41  ;  3  Lev.  365. 

The  tithe  of  hay  is  not  a  small  tithe,  but  vicars  are  in  many  parishes 
entitled  thereto  by  endowment. 

Skin.  341  ;  3  Keb.  419  ;   Bunb.  79,  344. 

And  if  a  vicar  be  entitled  by  endowment  to  the  tithe  of  hay  made  of 
grass,  he  is  likewise  entitled  to  the  tithe  of  hay  made  of  clover,  saintfoin, 
or  any  other  thing  of  the  like  kind,  although  the  cultivation  of  the  thing 
has  been  introduced  since  the  endowment  of  his  vicarage  ;  because  every 
one  of  these  things  is  a  species  of  grass. 

Hut.  78;  Skin.  341 ;  3  Keb.  419;  Bunb,  79,  344. 

The  tithe  of  hops  has  been  holden  to  be  a  small  tithe. 

Sid.  443,  Crouch  v.  Risden,  Bunb.  79. 

The  tithes  of  peas  and  beans  are  in  general  great  tithes ;  and  if  a  vicar 
be  entitled  to  the  tithe  of  either  of  these,  it  is  by  endowment. 

A  bill  being  brought  for  the  tithes  of  peas  and  beans,  sowed  and  set  in 
rows,  drilled,  hoed,  and  hand- weeded  in  a  garden-like  manner,  as  being 
small  tithes  ;  the  defendant  insisted,  that  peas  and  beans,  cultivated  in  this 
manner,  had  usually  been  grown  in  a  great  part  of  the  parish  ;  and  that 
tithes  thereof  had  never  been  paid  to  the  vicar.  It  was  decreed,  without 
going  into  the  consideration  of  the  quantity  grown  in  the  parish,  that  as  r.o 
endowment  of  these  tithes  was  produced,  nor  any  receipt  of  them  by  the 
vicars  proved,  the  bill  should  be  dismissed. 

Bunb.  170,  Gumley  v.  Birt. 

In  a  very  late  case  a  bill  was  brought  for  the  tithes  of  peas  and  beans, 
grown  in  fields,  gathered  by  hand  while  green,  and  sold  in  markets.  It 
was  said  for  the  plaintiff,  that,  although  the  tithes  of  the  peas  and  beans 
would  if  they  had  stood  till  they  were  ripe  have  been  great  tithes,  by 
gathering  the  peas  and  beans  before  they  were  ripe,  and  by  hand,  they  be- 
came small  tithes.  The  decree  was,  that  the  tithe  was  a  great  tithe.  And 
by  Lord  Henley,  Keeper,— The  difference  betwixt  a  great  and  small  tithe 
depends  entirely  upon  the  nature  of  the  thing  from  which  it  arises.  It 
would  be  strange  to  hold,  that  the  gathering  of  a  thing  at  one  time  should 
make  the  tithe  thereof  a  small  tithe,  which  would,  if  the  thing  had  been 
gathered  at  another  time,  have  been  a  great  tithe ;  it  has  been  expressly- 
determined  in  the  case  of  Hodgson  v.  Smith,  Bunb.  279,  that  the  tithe  of 
tares,  whether  cut  green  or  ripe,  is  a  great  tithe.  It  was  holden  in  the 
case  of  Gumley  v.  Birt,  Bunb.  170,  that  the  mode  of  cultivating  land  for 
the  growing  of  peas  or  beans  did  not  make  the  tithe  thereof  a  small  tithe ; 
and  there  is  surely  less  reason  to  hold,  that  the  mode  of  gathering  peas  or 
beans  should  make  the  tithe  thereof  a  small  tithe. 

MS.  Rep.  Sims  v.  Barnett,  Mich.  1  G.  3. 


TYTHES. 

(L)  How  far  Custom  regarded  in  setting  out  Tithes. 

If  a  vicar  be  entitled  by  endowment  to  the  tithe  of  peas  and  beans,  he 
is  entitled  to  such  tithe,  in  what  way  soever  the  land  upon  which  they  grow 
is  cultivated. 

A  bill  being  brought  for  the  tithes  of  peas  and  beans,  the  defendant  in- 
sisted, that  the  vicar  was  only  entitled  to  the  tithes  of  peas  and  beans  grown 
in  fields  when  the  ground  had  been  turned  with  a  spade  ;  but  it  was  de- 
creed by  the  Court  of  Exchequer,  that  he  was  also  entitled  to  the  tithes  of 
peas  and  beans  grown  in  fields  when  the  ground  had  been  turned  with  a 
plough  ;  and  the  decree  was  affirmed  in  the  House  of  Lords. 

Bunb.  19,  Nicholas  v.  Elliot;  2  Br.  P.  C.  31,  S.  C,  under  the  name  of  Husten 
v.  Nicholas. 

|| It  is  decided,  that  the  tithe  of  seed  tares  is  a  great  tithe. 

Daws  v.  Benn,  1  Barn.  &  C.  751  ;  3  Dow.  &  Ry.  122 ;  Gwill.  2061.l| 

It  has  been  decreed,  that  the  tithe  of  potatoes  is  a  small  tithe. 

MS.  Rep.  Smith  v.  Wyat,  Trin.  1G  G.  2  ;  2  Atk.  365,  S.  C.  ;  ||GwilL  777;  Sims 
v.  Bennett,  Gwill.  874;  2  Eag.  &  Youn.  172.|| 

The  tithe  of  saffron  has  been  holden  to  be  a  small  tithe. 

Cro.  Eliz.  4G7,  Bedingfield  v.  Feak,  Hut.  78. 

It  has  been  holden,  that  the  tithe  of  wood  is  a  small  tithe. 

Cro.  Car.  28,  Udall  v.  Tindall,  Sid.  447. 

The  tithe  of  wood  is  in  general  a  great  tithe,  but  in  some  parishes  it  is 
a  small  tithe. 

1  Roll.  Abr.  G43,  U,  pi.  2. 

|j  Tithe  of  cole  seed  is  a  small  tithe. 

Gwill.  533.     Sed  vide  1  Wood,  45,  528. 

So  is  tithe  of  teazel,  a  plant  ussd  by  clothiers. 

Gwill.  564,  565,  n. 

So  also  is  tithe  of  woad. 

Degge,  p.  2,  c.  1  ;  Gwill.  428. 

It  does  not  seem  settled  whether  tares,  clover,  artificial  grasses,  and  the 
like  articles,  cut  and  used  as  green  fodder,  are  in  the  nature  of  hay  and  a 
great  tithe,  or  in  the  nature  of  agistment  and  a  small  tithe. 

See  Lewis  v.  Young,  M'Clelland,  113;  3  Eag.  &  Youn.  1135;  Lagden  v.  Flack, 
2  Hagg.  R.  303  ;  3  Eag.  &  Y.  973  ;  Gwill.  1927. 

(I.)  How  far  the  Custom  of  a  Parish  is  to  be  regarded  in  the  setting  out  of  Tithes. 

It  is  by  divers  statutes  provided,  that  tithes  shall  be  paid  according 
to  the  usages  and  customs  (<t)  of  the  respective  parishes  in  which  they 
arise. 

|| (n)  The  custom  must  be  immemorial.  See  Knight  v.  Halsey,  2  Bos.  &  Pul.  172; 
Gwill.  1531 ;  sed  vide  Warden  of  St.  Paul's  v.  Morris,  9  Ves.  155;  Bennett  v.  Trep- 
pas,  Bunb.  106,  143  ;  2  Bro.  P.  C.  437  ;  Gwill.  G33  ;   1  Eagle  on  Tithe,  170.|| 

By  the  27  H.  S,  c.  20,  §  1,  it  is  enacted,  "  That  every  person,  accord- 
ing to  the  laudable  usages  and  customs  of  the  parish,  or  other  place 
w^ere  he  dwelleth,  shall  yield  and  pay  his  tithes  and  other  duties  of  holy 
church." 

By  the  32  II.  8,  c.  7,  §  2,  it  is  enacted,  "  That  all  persons  shall  fully, 
truly,  and  effectually  divide,  set  out,  yield,  or  pay  all  tithes,  according  to 
the  Lawful  customs  and  usages  of  (he  parishes  or  places  where  such  tithes  or 
duties  shall  grow,  arise,  come,  or  be  due." 


TYTHES. 

(L)  How  far  Custom  regarded  in  setting  out  Tithes. 

By  the  2  &  3  Ed.  6,  c.  13,  §  1,  after  enacting  that  (he  statutes  made  in 
the  twenty-seventh  and  thirty-second  years  of  the  reign  of  the  late  Kino- 
Henry  the  Eighth,  concerning  the  true  payment  of  tithes  and  other  duties, 
shall  abide  in  their  full  strength  and  virtue,  it  is  further  enacted,  "  That  all 
persons  shall  truly  and  justly,  without  fraud  or  guile,  yield  and  pay  all  man- 
ner of  predial  tithes,  in  their  proper  kind,  as  they  rise  and  happen,  in  such 
manner  and  form  as  hath  been  of  right  yielded  and  paid  within  forty  years 
next  before  the  making  of  this  act,  or  of  right  or  custom  ought  to  have  been 
paid." 

And  by  §  8,  it  is  enacted,  "  That  in  every  place  the  same  custom  of 
payment  of  personal  tithes,  which  had  been  observed  within  forty  years 
before  the  making  of  this  act,  shall  be  observed  and  continue." 

The  limitation  in  this  statute,  to  forty  years  before  the  making  thereof, 
agrees  with  the  ecclesiastical  law,  by  which,  if  any  tithe  had  been  paid  in 
a  certain  way  for  the  space  of  forty  years,  such  payment  would  have  made 
a  good  custom  against  the  church. 

Cro.  Ja.  454,  Dobitoshe  v.  Curteen;  ||G\vill.  287;  1  Eagle  &  Youn.  262. || 

The  construction  of  these  statutes  has  constantly  been,  that  a  custom  of 
a  parish  as  to  the  payment  of  tithes  is  not  to  be  regarded  unless  it  be  a 
reasonable  one. 

Wherever  the  tithe  of  a  thing  is  due  of  common  right,  as  of  wheat,  a 
custom  of  a  parish  to  pay  less  than  the  tenth  part  for  tithe  is  bad  ;  because 
this  custom,  which  amounts  to  a  proscription  in  non  decimando  as  to  part 
of  the  thing,  is  unreasonable. 

1  Sid.  278  ;  1  Lev.  179  ;  Ld.  Raym.  359  ;  12  Mod.  206  ;  1  And.  99. 

But  where  the  tithe  of  a  thing  is  due  by  custom,  as  of  fish  taken  in  the 
sea,  a  custom  of  a  parish  to  pay  less  than  the  tenth  part  is  good :  and  in- 
deed there  seems  to  be  no  way,  except  by  the  custom,  of  ascertaining  what 
is  to  be  paid  for  a  tithe  which  is  only  due  by  custom. 
Noy,  108,  Holland  v.  Heale,  1  Sid.  278;   1  Lev.  19. 

It  was  alleged,  that  by  the  custom  of  a  parish  the  tenth  part  was  without 
fraud  to  be  delivered  to  the  rector,  in  full  satisfaction  for  the  tithe  of  wool  ; 
and  that  this  was  to  be  delivered  absque  visuet  tactic  novem  partium  ejusdem 
lance  per  rectorem.  The  custom  was  holden  to  be  unreasonable  ;  for  al- 
though it  be  alleged  that  the  tenth  part  of  the  wool  was  to  be  delivered 
without  fraud,  yet  this  is  to  be  delivered  in  such  manner  as  is  extremely 
liable  to  fraud.  It  is  moreover  contrary  to  reason,  that  the  person  who  is 
to  pay  tithe  should  be  the  sole  judge  whether  it  be  justly  paid. 

Hob.  107;  Wilson  v.  The  Bishop  of  Carlisle,  Bunb.  321  ;  [jGwill.  279,  and  Eag. 
&  Y.  250;  and  see  13  East,  261 ;  2  Taunt.  55. || 

||It  seems  that  the  tithe  of  wool  may  be  lawfully  set  out,  either  by  num- 
ber or  weight,  according  to  the  custom  of  the  place. 
Jenkinson  v.  Royston,  5  Price,  495  ;  Gwill.  1878. [| 

The  custom  was,  that  the  tenth  sheaf  of  such  corn  as  was  bound  up  in 
sheaves  was  to  be  paid  in  full  satisfaction  for  the  tithe  of  all  corn  grown 
upon  certain  lands.  This  was  adjudged  a  bad  custom,  because  it  admits 
of  the  paying  as  little  for  tithe  of  corn  as  the  occupier  pleases;  for  he  may 
choose  how  much  of  the  corn  he  will  bind  up  in  sheaves. 

1  And.  199,  Adam's  case.     \\Sed  vide  13  East,  2G1  -|j 

In  a  suit  for  subtracting  tithe,  the  defendant  alleged,  that  by  the  custom 

D 


38  TYTHES 

(L)  How  far  Custom  regarded  in  setting  out  Tithes. 

of  a  farm,  the  occupier  of  the  farm,  after  having  set  out  the  tithe  of  corn, 
was  to  take  back  thirty  sheaves  of  the  tithe.  As  it  was  not  averred  that 
the  farm  was  a  large  one,  this  custom  was  holden  to  be  bad  ;  for,  if  it  were 
a  small  farm,  there  might  be  no  more  than  thirty  sheaves  set  out  for  tithe, 
in  which  case  the  parson  would  have  no  tithe. 
Godb.  234,  Jacks  v.  Cavendish. 

It  was  alleged,  that  by  the  custom  of  a  parish,  when  certain  lands  are 
sown  with  corn,  the  parson  is  to  have  for  tithe  the  corn  grown  upon  every 
tenth  land,  beginning  to  reckon  from  the  land  next  the  church.  It  was 
holden  that  this  custom,  which  puts  it  into  the  power  of  the  occupier,  by 
neglecting  to  manure  and  sow  the  tenth  lands  properly,  to  make  the  tithes 
thereof  worth  very  little,  is  unreasonable,  and  therefore  bad. 

1  Leon.  99,  Stebbs  v.  Goodlake;  Moor,  913  ;  2  P.  Wms.  569  ;  Vin.  Ahr.  tit.  Dismes, 
B,  a,  pi.  17. 

[A  custom  of  a  parish  to  tithe  wheat  by  throwing  aside  every  tenth  sheaf, 
as  the  corn  is  about  to  be  carried,  is  bad. 

Tennant  v.  Stubbing,  Anstr.  841.] 

|| So,  a  custom  to  set  out  the  tithe  of  hops  by  the  tenth  hill,  where  the 
rows  are  unequal,  leaving  the  binds  uncut,  and  the  poles  standing,  cannot 
be  supported  ;  for,  by  common  law,  hops  are  tithable  after  they  are 
gathered  from  the  bind ;  and  this  custom  gives  no  equivalent  for  the  addi- 
tional labour  thrown  on  the  parson. 

Knight  v.  Halsey,  7  Term  R.  8G;  Gwill.  1538  ;  2  Bos.  &  Pul.  172. 

But  a  custom  for  the  parson  to  take  the  eleventh  shock  of  wheat  was 
held  good,  where  it  appeared  that  the  farmer  was  always  used  to  put  the 
sheaves  into  shocks,  and  in  case  of  bad  weather  to  open  them  to  dry ; 
since  the  wheat,  which,  at  common  law,  is  tithable  in  the  sheaf,  was  thus 
advanced  to  a  further  state  of  preparation. 

Smith  v.  Sambrook,  I  Maule  &  S.  GG. 

The  same  custom,  however,  as  to  barley  was  held  bad,  where  the  farmer 
merely  put  it  into  cocks,  without  doing  any  thing  further,  except  opening 
them  in  case  of  wet  weather ;  since  this  was  too  minute  a  benefit  to  the 
parson  to  amount  to  a  consideration  for  the  deduction. 

Smith  v.  Sambrook,  1  Maule  &  S.  C6.|| 

The  custom  of  a  parish  was  to  pay  tithe  in  kind  of  sheep,  if  they  were 
kept  a  whole  year  in  the  parish  ;  but  if  they  were  sold  before  shearing  time, 
only  a  halfpenny  was  to  be  paid  for  the  tithe  of  each  sheep.  This  was  ad- 
judged an  unreasonable  custom ;  for  thereby  the  tithe  of  sheep  may,  at  the 
owner's  pleasure,  be  made  worth  very  little. 

March,  79,  Weedon  v.  Harding. 

It  was  alleged,  that  by  the  custom  of  a  parish,  the  tenth  lamb  was  to  be 
paid  for  the  tithe  of  all  lambs  yeaned  in  the  parish  ;  and  that  in  consider- 
ation of  this  no  tithe  was  to  be  paid  for  ewes  d. -pastured  in  the  parish, 
which  did  not  yean  therein.  This  was  holden  to  be  a  bad  custom  ;  for, 
by  taking  the  ewes  out  of  the  parish  a  little  before  the  time  of  yeaning,  the 
parson  may  be  deprived  of  his  tithe  of  sheep. 

12  Mod.  498,  Selby  v.  Bank.  ||See  Boys  v.  Ellis,  Bunb.  139;  Gwill.  647;  Hall  v. 
Maltby,  6  Price,  240  ;  Gwill.  1888.|| 

A  custom  to  pay  tithes  of  lambs  upon  Saint  Mark's  day,  was  holden  to. 


TYTHES  39 

N)  Of  setting  cut  predial  Tithes  by  the  Common  Law. 

be  unreasonable,  because,  at  that  time,  lambs  are  in  the  general  so  young, 

that  they  are  not  able  to  live  without  their  dams. 

Bunb.  133,  Reynolds  v.  Vincent.  ||See  Welch  v.  Uppill,  3  Moo.  330  ;  Gwill.  1819; 
Jenkinson  v.  Royston,  5  Price,  495. !| 

(M)  Of  the  Time  and  Manner  of  paying  personal  Tithes,  where  there  is  no  Custom  in 

a  Parish. 

By  the  2  &  3  Ed.  6,  c.  13,  §  7,  it  is  enacted,  "  That  every  person, 
liable  to  the  payment  thereof,  shall  yearly,  at  or  before  Easter,  pay  for  his 
personal  tithe  the  tenth  part  of  his  clear  gain,  his  charges  and  expenses, 
according  to  his  estate,  condition,  or  degree,  to  be  therein  abated,  allowed, 
and  deducted." 

It  was  determined  in  the  House  of  Lords,  upon  an  appeal  from  the  Court 
of  Exchequer,  that  the  occupier  of  a  corn-mill  is  only  liable  to  pay,  for  his 
personal  tithe,  the  tenth  part  of  his  clear  profit,  after  the  charge  of  erecting 
the  mill,  and  the  expenses  of  horses,  servants,  and  all  other  things  are 
deducted. 

1  Eq.  Ca.  Abr.  366,  Newte  v.  Chamberlain  ;  1  Br.  P.  C.  157,  S.  C. ;  ||Gwill.  596  ; 
and  see  Manby  v.  Taylor,  9  Price,  249;  2  Eag.  &  Youn.  696.|| 

It  is  said  to  have  been  the  opinion  of  Gilbert,  Chief  Baron,  that  Easter 
ofFeiings  were  at  first  a  compensation  for  personal  tithes. 
Bunb.  174. 

And  this  opinion  seems  to  be  confirmed  by  two  late  cases  in  the  Court 
of  Exchequer;  in  which  the  court  unanimously  agreed,  that  Easter  offer- 
ings are  due  of  common  right. 

Bunb.  173,  198 ;  Ambl.  72,  S.  P.     !;See  1  Eagle  on  Tithes,  c.  viii.|| 

For  it  cannot  reasonably  be  supposed  that  an  Easter  offering  is  due  of 
common  right,  unless  it  be  at  the  same  time  supposed  that  it  was  at  first 
paid  in  lieu  of  something  due  of  common  right :  and  it  seems  more  pro- 
bable that  it  was  at  first  paid  in  lieu  of  the  tithe  of  personal  labour,  than 
of  any  other  thing. 

|jBy  2  &  3  Ed.  6,  c.  13,  §  10,  it  is  enacted,  that  all  and  every  person 
and  persons,  which,  by  the  laws  and  customs  of  the  realm,  ought  to  make 
or  pay  their  offerings,  shall  yearly  from  henceforth  well  and  truly  content 
and  pay  his  or  their  offerings  to  the  parson,  vicar,  proprietor,  or  their 
deputies  or  farmers,  of  the  parish  or  parishes  where  it  shall  fortune  or  hap- 
pen him  or  them  to  dwell  or  abide,  and  that  at  such  four  offering  days  as 
at  any  time  heretofore,  within  the  space  of  four  years  last  past,  hath  been 
used  and  accustomed  for  payment  of  the  same  ;  and  in  default  thereof,  U> 
pay  for  their  said  offerings  at  Easter  then  next  following.  The  four  offer- 
ing days  are  most  commonly  Christmas,  Easter,  Whitsuntide,  and  the  feast 
of  the  dedication  of  the  parish  church. 

Gibs.  739.|| 

(X)  Of  the  Time  and  Manner  of  setting  out  predial  Tithes,  where  there  is  no  Custom 

in  a  Parish. 

It  is  laid  down  in  divers  books,  that  only  one  predial  tithe  can  be  due 
in  the  same  year  from  the  same  land. 

Fitz.  N.  B.  5;  Bio.Diam.  pi.  16;  2  Inst.  652;  11  Rep.  lb. 

But  it  seems  to  be  now  settled,  that  more  than  one  piedial  tithe  may  be 
due  from  the  same  land  in  the  same  year. 


40  TYTHES. 

(N)  Of  setting  out  predial  Tithes  by  the  Common  Law. 

It  was  holden  many  years  ago,  that  tithe  is  due  of  aftermath  hay. 

1  Roll.  Abr.  640,  pi.  11,  Pasch.  41  Eliz. 

It  was  holden  by  the  Court  of  Exchequer  in  a  modern  case,  that  garden 
grounds  shall  pay  tithes  of  the  different  crops  produced  in  the  same  year ; 
and  that  tithe  is  due  of  turnips  when  pulled,  although  they  grow  upon  land 
which  has  in  the  same  year  paid  tithe. 

Bunb.  10,  Benson  v.  Watkins,  Hil.  3  G.  1  ;  ||Gwill.  612.  See  1  Eagle  on  Tithes, 
327.11 

And  in  a  still  later  case  it  was  holden  by  the  same  court,  that  if  land  be 
sown  with  turnips  in  the  same  year  that  tithe  of  corn  grown  thereon  has 
been  paid,  and  be  fed  with  sheep  or  any  unprofitable  cattle,  tithe  is  to  be 
paid  of  the  turnips. 

Bunb.  314,  Swinfen  v.  Digby,  Hil.  5  G.  2.  \\Sed  vide  Wright  v.  Elderton,  contra, 
1  Wood,  518;  Gvvill.  607.(1 

It  was  indeed  in  one  case  holden,  that  no  tithe  is  due  of  aftermath  hay ; 
but  the  reason  given  in  this  case  for  such  hay  being  exempted  from  the 
payment  of  tithe  is,  that,  by  the  custom  of  the  parish,  the  occupier  was 
to  bestow  some  extraordinary  labour  about  the  tithe  of  the  first  crop 
of  hay. 

Cro.  Ja.  42,  Hall  v.  Fettyplace.  ||Where  there  is  no  special  custom  to  the  contrary, 
founded  on  consideration,  it  is  now  settled  that  tithe  is  due  of  aftermath  hay;  and  the 
rule  seems  to  have  been  introduced  to  prevent  fraud  in  the  severance  of  the  first  crop. 
See  Toll,  on  Tithes,  63J| 

It  is  laid  down  in  one  case,  that  a  predial  tithe  is  to  be  set  out  as  soon 
after  the  corn,  or  other  thing  of  which  it  arises,  is  severed,  as  this  can  well 
be  done,  if  there  be  no  custom  to  the  contrary. 

Freem.  335,  Anon. 

And  it  is  in  another  case  said,  that  if  a  man,  either  negligently  or  with 
design,  suffer  apples  to  hang  longer  upon  the  trees  than  they  ought  to 
hang,  and  they  should  be  stolen,  he  shall  account  for  the  tithe  thereof. 

Hetl.  100,  Anon. 

1p  a  modern  case  in  the  Court  of  Exchequer  it  was  said  by  the  court, 
.nat  all  the  wheat  growing  in  a  field  must  be  cut  down,  before  the  tithe  of 
any  part  of  the  wheat  can  be  set  out. 

MS.  Rep.  Mather  v.  Holmwood,  Mich.  5  G.  3. 

In  a  subsequent  case  in  the  same  court,  wherein  a  question  was,  Whether 
all  the  wheat  growing  in  a  field  must  be  cut  down  before  the  tithe  of  any 
part  of  the  wheat  can  be  set  out,  the  case  of  Mather  v.  Holmwood  was 
cited,  and  relied  upon  by  the  counsel  for  the  plaintiff,  as  a  determination 
in  point.  The  late  Mr.  Hussey,  after  opening  for  the  defendant,  observed, 
that  the  question  was  not,  according  to  his  recollection,  much  argued  in  the 
case  of  Mather  v.  Holmwood  ;  for  that,  some  circumstances  of  fraud  appear- 
in"-  in  that  case,  he,  who  was  of  counsel  with  the  defendant,  recommended 
to  his  client  to  submit  to  a  decree,  for  accounting  for  the  tithe  in  question 
without  costs.  Having  observed  this,  he,  with  that  delicacy  and  candour 
for  which  he  was  most  remarkably  distinguished,  begged  to  be  informed 
by  the  court,  whether  he  was  precluded,  by  any  thing  which  fell  from  the 
court  in  the  case  of  Mather  v.  Holmwood,  from  arguing  the  question  in  the 
present  case.  Hereupon  Parker,  Chief  Baron,  said,  that  it  was  the  desire 
of  the  court  to  have  the  question,  it  being  a  question  of  the  utmost  im- 
portance, fully  argued  ;  and,  which  showed  true  greatness  of  mind  as  weft 


TYTHES.  41 

(N)  Of  setting  out  predial  Tithes  by  the  Common  Law. 

as  goodness  of  heart,  he  added  that,  for  his  own  part,  he  should  be  glad  U 
reconsider  the  question,  in  order  to  have  an  opportunity,  in  case  he  should 
see  reason  for  it,  of  departing  from  an  opinion  he  had  for  some  time  enter- 
tained. After  hearing  the  question  fully  argued,  and  taking  time  to  con- 
sider, the  opinion  of  the  court  was,  that  it  is  not  necessary  to  cut  down  all 
the  wheat  growing  in  a  field,  before  the  tithe  of  any  part  of  the  wheat  is 
set  out ;  and  that  the  tithe  may  be  set  out,  as  often  as  a  reasonable  quantity 
of  the  corn  growing  in  a  field  is  cut  down.  Another  question  in  this  case 
was,  Whether  all  the  barley  or  oats  growing  in  a  field  must  be  cut  down, 
before  the  tithe  of  any  part  of  the  barley  or  oats  can  be  set  out?  The 
opinion  of  the  court  was, — That  it  is  not  necessary  to  cut  down  all  the 
barley  or  oats  growing  in  a  field,  before  the  tithe  of  any  part  can  be  set 
out ;  and  that  the  tithe  may  be  set  out  as  often  as  a  reasonable  quantity  of 
the  corn  growing  in  a  field  is  cut  down.  The  court  did  not  ascertain  what 
is  a  reasonable  quantity  of  corn  to  be  cut  down,  before  any  tithe  is  set  out. 
So  far  from  doing  this,  it  was  said,  that  it  could  not  be  done  ;  inasmuch 
as  it  must  always  depend  upon  the  circumstances  of  the  particular  case, 
whether  the  tithe  was  set  out  before  a  reasonable  quantity  of  corn  was  cut 
down. 
MS.  Rep.  Erskine  v.  Ruffle,  Mich.  9  G.  3  ;  [Hall  v.  Macket,  E.  37  G.  3,  in  Scacc] 

||  A  farmer  is  not  in  general  at  liberty  to  begin  to  cut  and  tithe  a  part  of 
a  field,  and  then  to  proceed  to  another  field  and  cut  part  of  that  before 
finishing  the  other;  though  this  rule  admits  of  exceptions,  in  respect  of 
partial  ripeness  of  the  corn,  uncertainty  of  weather,  &c. ;  and  there  is  no 
rule  which  obliges  him  to  tithe  the  whole  of  that  part  of  a  field  which  lies 
in  one  parish,  before  he  proceed  to  tithe  any  part  of  the  same  field  lying 
in  another  parish.  Therefore,  where  a  farmer  cut  the  whole  of  a  field  of 
barley  lying  in  the  parishes  of  A  and  B,  and  after  cocking  and  tithing  part 
in  A,  proceeded  to  cock  and  tithe  part  in  B  ;  and  the  weather  being  catch- 
ing, he  carried  that  part  which  was  tithed  in  A  the  day  before  the  rest  of 
the  field  in  A  was  cocked  and  tithed,  and  without  previous  notice  of  his 
intention  to  carry  such  part ;  this  being  done  bond  Jide,  the  court  held  it 
was  lawful. 

Leathes,  clerk,  v.  Levinson,  12  East,  239;  Gwill.  1G52.[| 

By  the  2  &  3  Ed.  6,  c.  13,  §  2,  it  is  enacted,  "  That  at  all  times  and  as 
often  as  predial  tithes  shall  be  due,  and  at  the  tithing-time  of  the  same,  it 
be  lawful  to  every  party  to  whom  any  of  the  said  tithes  ought  to  be  paid, 
or  his  deputy  or  servant,  to  view  and  see  their  said  tithes  to  be  justly  and 
truly  set  forth  and  severed  from  the  nine  parts." 

But  it  is  not  necessary  for  the  occupier  of  land  to  give  notice  to  the  per- 
son entitled  to  a  predial  tithe,  or  to  give  notice  in  the  church,  at  what  time 
he  intends  to  set  the  same  out. 

1  Roll.  Abr.  G43,  X,  pi.  1 ;  2  Ventr.  43. 

And  in  a  modern  case,  Carter  and  Comyns,  Barons,  were  of  opinion, 
that  even  a  custom  of  a  parish,  to  give  notice  at  what  time  a  predial  tithe 
is  to  be  set  out,  would  be  unreasonable  ;  for  the  person  entitled  to  the  tithe 
may  live  at  the  distance  of  a  hundred  miles  from  the  parish. 

Bunb.  333,  Beaver  v.  Spratley,  Hil.  7  G.  1. 

But  Reynolds,  Chief  Baron,  was  of  opinion,  that  such  a  custom  would 
Vol.  X.— 6  d  2 


42  TYTHES. 

(N)  Of  setting  out  predial  Tithes  by  the  Common  Law. 

be  good; (a)  because  notice  to  a  servant  would  in  that  case  be  suffi- 
cient. 

||  (a)  It  is  now  settled,  that  such  a  custom  is  good.  Butter  v.  Heathby,  Burr.  1891 ; 
GwilL  928.  An  action  on  the  case  will  not  lie  against  the  parson  for  not  taking  away 
the  tithe,  unless  such  notice  is  g-iven  ;  and  as  to  what  notice  is  sufficient,  see  Gwill. 
1439;  Kemp  v.  Filewood,  11  East,  358  ;  Sir  W.  Scott's  judgment  in  Filewood  v. 
Marsh,  1  Hagg.  R.  478. || 

The  general  rule,  as  to  the  manner  of  paying  a  predial  tithe,  is,  that  the 
tenth  part  of  the  thing  from  which  it  arises  is  to  be  justly  and  truly  set  out 
upon  the  land  upon  which  it  arises. 

In  some  cases  the  manner  of  setting  out  a  predial  tithe  is  ascertained  by 
judicial  determination. 

It  has  been  holden,  that  every  tenth  sheaf  of  corn  is  to  be  set  out  for  the 
tithe  thereof. 

1  Sid.  283,  Ledgar  v.  Langley. 

And  it  was  said  arguendo,  that  the  sheaves  set  out  for  tithe  of  corn  ought 
to  be  marked  with  a  green  bough. 

Bunb.  186,  Boughton  v.  Wright. 

The  occupier  of  land  is  not  of  common  right  obliged  to  gather  the 
sheaves  of  corn,  which  have  been  set  out  for  tithe,  into  shocks. 

1  Sid.  283,  Ledgar  v.  Langley. 

But  he  may  by  custom  be  obliged  to  do  this,  and  the  person  having  a 
rio-ht  to  the  tithe  may  at  any  time  bring  a  bill  in  a  court  of  equity  for  the 
establishment  of  the  custom. 

2  Atk.  136,  Archbishop  of  York  v.  Sir  Miles  Stapleton.  ||Gwill.  772;  2  Eag.  & 
Youn.  83. || 

Before  the  nine  sheaves  of  the  occupier  of  the  land  are  put  into  a  car- 
riage to  be  carried  away,  the  whole  ten  are  to  be  set  out  upon  the  ground, 
that  the  person  entitled  to  the  tithe  thereof  may  have  an  opportunity  of 
judging  whether  the  same  be  fairly  set  out. 

Bunb.  186,  Boughton  v.  Wright. 

[jTherefore  the  farmer  cannot  legally  before  tithing  put  all  the  sheaves 
when  bound  immediately  into  large  shocks,  or  riders,  consisting  of  eight 
sheaves,  set  upon  their  ends  against  each  other,  with  two  covering  sheaves 
placed  roofwise  on  the  top  for  the  purpose  of  protecting  the  whole  from 
bad  weather,  and  then  draw  the  tenth  sheaf  from  the  shock,  without 
taking  the  rest  of  the  shock  to  pieces  :  for  the  parson  is  thus  deprived  of  a 
reasonable  and  convenient  opportunity  of  comparing  the  tenth  with  the 
other  nine  sheaves  ;  and  the  corn  ought  to  be  tithed  in  the  sheaf,  before  it 
is  put  into  shocks  or  riders. 

Shallcross  v.  Jowle,  13  East,  261 ;  and  see  2  Taunt.  35.  || 

In  a  very  late  case  in  the  Court  of  Exchequer,  the  opinion  of  the  court, 
upon  great  consideration,  was,  that  unless  there  be  a  custom  of  the  parish 
to  set  the  tithe  of  barley  out  in  some  other  manner,  the  bailey  must  be 
gathered  into  cocks,  and  every  tenth  cock  must  be  set  out  for  tithe 
'  MS.  Rep.  Ereskine  v.  Ruffle,  Mich.  9  G.  3.  ||See  1  Maule  &  S.  66.l| 

In  one  book  it  is  laid  down,  that  tithe  for  depasturing  cattle  is  to  be  paid 
for  at  the  rate  of  two  shillings  in  the  pound  of  the  money  received  for  the 
depasturing. 

Freem.  329,  Anon. 

But  it  seems  to  be  the  better  opinion,  that  tithe  for  depasturing  cattle  is 


TYTHES.        .  43 

(N)  Of  setting  out  predial  Tithes  by  the  Common  Law. 

to  be  paid  for  at  the  rate  of  two  shillings  in  the  pound  of  the  annual  value 
of  the  land  whereon  the  cattle  were  depastured. 

Hardr.  184. 

It  is  in  one  case  laid  down,  that  the  tithe  of  grass  mowed  is  to  be  set 
out  before  it  is  made  into  grass-cocks. 

Hob.  250,  Hide  v.  Ellis,  Hil.  1G  .la.  1 ;  |;G\vill.  431 ;   4  Eag.  &  Youn.  303. j| 

But  it  was  in  a  modern  case  holden,  that  the  tithe  of  grass  mowed  is  not 
to  be  set  out  until  it  is  made  into  grass-cocks. 

[2  I'.  Wms.  5-23.  In  a  note  on  this  case  by  the  editor,  it  is  said,  the  tithes  are 
called  the  tithes  of  hay,  and  not  of  grass.     3  Burn.  Ecel.  Law,  441.] 

|| It  is  settled,  that  the  common-law  mode  of  tithing  hay  is  in  grass- 
cocks,  after  the  grass  has  been  tedded  in  the  process  of  making  it  into  hay. 
Newman  v.  Morgan,  10  East,  R.  5;   Halliuell  v.  Trapps,  2  Taunt.  55. || 

[Where,  by  the  usual  mode  of  husbandry,  clover-hay  is  not  made  into 
cocks  at  all,  the  tithe  may  be  set  out  in  the  swathe. 
Collyer  v.  Howes,  Anstr.  481. 

This  case  has,  however,  been  re-heard  by  the  Court  of  Exchequer,  and 
the  former  decree  has  been  reversed.  It  appeared  from  the  additional 
evidence  introduced  upon  the  re-hearing,  that  in  the  usual  course  of  hus- 
bandry clover  does  get  into  the  shape  of  cocks,  so  that  the  ground  of  the 
former  decision  failed.  The  court  said  that  it  was  like  the  case  of  soft 
corn,  which,  it  had  been  decided,  was  not  tithable  in  the  swathe. 

Tr.  37  G.  3,  Toller,  82.] 

The  person  entitled  to  the  tithe  of  grass  mowed,  is  to  be  allowed  a  con- 
venient time  for  making  it  into  hay  upon  the  land  on  which  it  grew. 

Bro.  Dism.  pi.  12;  1  Roll.  Abr.  643,  X,  pi.  2;  Sir.  245. 

It  was  formerly  doubted  whether  the  tithe  of  hops  were  to  be  set  out  by 
the  tenth  hill  as  soon  as  the  binds  were  severed  from  the  ground,  or  by  the 
tenth  measure  after  the  hops  were  picked. 

Sid.  283,  Ledgar  v.  Langley,  Pasch.  18  Car.  2. 

But  it  has  been  determined  in  two  cases,  that  the  tithe  of  hops  is  to  be 
set  out  by  the  tenth  measure,  after  they  are  picked. 

Bunb.  20,  Chilly  v.  Reeves,  Trin.  2  Ja.  2  :   Bliss  v.  Chandler,  Mich.  7  G.  1. 

The  same  was  determined  in  a  modern  case  by  the  Court  of  Exchequer; 
and  the  decree  of  this  court  was  affirmed  upon  an  appeal  to  the  House  of 
Lord.--. 

MS.  Rep.  Tvers  v.  Walton,  in  Dom.  Proc.  15th  May,  1753;  [Knight  v.  Halsey, 
7  Term  R.  86,  S.  P. ;]   ||2  Bos.  &  Pal.  172  ;  8  Bro.  P.  C.  233. I| 

In  some  cases,  the  manner  of  paving  a  predial  tithe  is  ascertained  by 
acts  of  parliament. 

By  the  11  &  12  W.  3,  c.  16,  it  is,  for  the  better  ascertaining  the  tithes 
of  hemp  and  flax,  enacted,  "  That  ever}-  person  who  shall  thereafter  sow 
any  hemp  or  flax  in  any  parish  or  place  within  England,  Wales,  or  Ber- 
wick-upon-Tweed, shall  pay  to  the  parson,  vicar,  or  impropriator  of  such 
parish  or  place,  yearly,  the  sum  of  five  shillings  and  no  more,  for  each  acre 
of  hemp  or  flax,  before  the  same  is  carried  off  the  ground,  and  so  in  pro- 
portion for  more  or  less  ground  so  sown." 

|]This  statute  is  made  perpetual  b)'  1  G.  t,  st.  2,  e.  26,  s.  2.|| 

By  the  31  G.  2,  c.  12,  it  is,  for  the  encouragement  of  the  growth  of 
madder,  enacted,  "That  every  person  who  shall  thereafter  plant  or  culti- 


44  TYTHES. 

(0)  Of  paying  Tithes  where  there  is  no  Custom. 

vate  any  madder,  in  any  parish  or  place  within  that  part  of  Great  Britain 
called  England,  shall  pay  to  the  parson,  vicar,  curate,  or  impropriator  of 
such  parish  or  place,  yearly,  the  sum  of  five  shillings  and  no  more  for  each 
acre  thereof,  and  so  in  proportion  for  more  or  less  ground  so  planted  or 
cultivated,  in  lieu  of  all  manner  of  tithe  of  the  said  madder." 

|]Continued  for  fourteen  years,  by  5  G.  3,  c.  18,  and  not  since  renewed  ;  so  that  mad- 
der is  now  tithable  in  kind.fl 

But  it  is  in  both  these  statutes  provided,  that  nothing  therein  contained 
shall  extend  to  charge  any  land  which  is  discharged  of  tithe  by  a  modus, 
an  ancient  composition,  or  otherwise. 

Although  two  persons  are  entitled  to  moieties  of  a  predial  tithe,  the  oc- 
cupier of  the  land  is  not  bound  to  set  it  out  in  moieties ;  for  it  is  the  duty 
of  the  persons  to  whom  the  tithe  is  due  to  divide  it  after  it  is  set  out. 

Lat.  24,  Stilman  v.  Cromer;  ||1  Eag.  &  Y.  354. || 

||  A  parson  is  not  entitled  to  use  every  road,  for  carrying  away  the  tithes, 
which  the  farmer  may  use  for  the  occupation  of  his  farm  :  and  the  rule 
seems  to  be,  that  he  may  use  only  such  road  as  the  farmer  uses  for  the  oc- 
cupation of  the  close  in  which  the  tithes  grew. 

Cobb  v.  Selby,  2  New  R.  46G.|| 

(0)  Of  the  Time  and  Manner  of  setting  out  or  paying  mixed  Tithes,  where  there  is  no 

Custom  in  a  Parish. 

It  i ?  in  general  true,  that  mixed  tithes,  which  arise  from  things  inani- 
mate, are  to  be  set  out  or  paid  as  soon  as  they  can  conveniently  be  severed 
from  the  nine  parts. 

Freem.  335,  Anon. 

The  general  rule  as  to  the  manner  of  setting  out  a  mixed  tithe,  arising 
from  an  inanimate  thing,  is,  that  the  tenth  part  of  the  thing  is  to  be  set  out 
at  the  place  where  it  arises. 

But  the  manner  of  setting  out  mixed  tithes  has,  in  some  cases,  been 
ascertained  by  judicial  determinations. 

The  tenth  meal  of  milk  of  all  a  farmer's  cows,  is  to  be  set  out  for  the 
tithe  of  milk;  for  if  the  person  entitled  to  tithe  of  milk  should  be  obliged 
to  send  for  the  tenth  part  of  every  meal,  it  would  very  often  be  not  worth 
the  sending  for. 

Raym.  277,  Dod  v.  Engleton. 

[It  is  now  settled,  that  the  mode  of  setting  out  tithe-milk  is,  that  the 
entire  tenth  meal  of  the  whole  herd  of  cows  should  be  set  forth  every  tenth 
day,  both  morning  and  evening  meal,  at  one  and  the  same  time. 

Beswortli  v.  Limbrick,  2  Raym.  825;  Hutchins  v.  Full,  3  Raym.  1010.] 

It  has  been  decreed,  that  ihe  tithe  of  milk  is  to  be  carried  by  the  pa- 
rishioner to  the  parsonage-house. 

Raym.  277,  Dod  v.  Engleton. 

But  Holt,  Chief  Justice,  was  of  opinion  that  the  parishioner  is  only 
obliged  to  set  out  the  tithe  of  milk ;  and  he  said  that  that  decree  in  Dod 
and  Engleton  was  rather  an  equitable  one,  and  founded  upon  the  custom 
of  the  neighbouring  parishes. 

Ld.  Raym.  359,  Hill  v.  Vaun. 

And  in  a  modern  case,  the  whole  Court  of  Exchequer  were  of  opinion, 
that  the  parishioner  is  only  obliged  to  set  out  every  tenth  meal  of  milk  at 
the  usual  place  of  milking ; — that  the  person  entitled  thereto  ought  to  fetch 


TYTHES.  45 

(P)  Of  paying  Tithes  due  by  Custom. 

it  away  in  his  own  pail  or  vessel ; — and  that  if  he  do  not  fetch  it  away  be- 
fore the  next  milking  time,  the  parishioner  may  pour  it  on  the  ground,  be- 
cause he  may  then  have  occasion  for  the  pail  or  vessel  in  which  it  was  set 
out. 

Bunb.  73,  Dodson  v.  Oliver,  Pasch.  8  G.  1 ;  Ambl.  72,  S.  P. 

The  tenth  part,  by  weight,  is  to  be  delivered  for  the  tithe  of  wool. 

12  Mod.  498. 

Such  mixed  tithes  as  arise  from  the  young  of  beasts,  birds,  or  fowls  are 
in  general  to  be  set  out  or  paid  as  soon  as  the  young  beasts,  birds,  or  fowls 
can  well  live  without  the  old  ones. 

Bunb.  133,  Reynolds  v.  Vincent.  ||In  a  late  case  the  court  of  C.  B.  decided,  that 
the  tithe  of  calves  and  lambs  accrues  when  they  are  dropped  ;  but  that  they  are  not 
tithable  till  they  can  be  weaned,  and  live  without  their  dams.  Welch  v.  Uppill,  3  B. 
Moo.  384  ;  and  see  Gwill.  630,  1058. I| 

It  has  been  holden,  that  tithe  is  not  to  be  paid  for  any  number  of  young 
beasts,  birds,  or  fowls  under  ten  ;  but  that  this  number  is  to  be  carried  over 
to  the  account  of  the  next  year. 

12  Mod.  497,  Selby  v.  Bark,  Pasch.  13  W.  3. 

But  in  a  modern  case  it  was  decreed  by  the  Court  of  Exchequer,  that  if 
the  number  of  young  beasts,  birds,  or  fowls  be  under  ten,  this  number  is 
not  to  be  carried  over  to  the  next  year's  account :  but  the  tenth  part  of  the 
value  thereof  in  money  is  to  be  paid  for  tithe. 

Bunb.  198,  Egerton  v.  Still,  Trin.  12  G.  I.     ||See  Toll,  on  Tythes,   143,  144,  (3d 

edit.)  | 

(P)  Of  the  Time  and  Manner  of  paying  Tithes  due  by  Custom. 

It  is  in  general  true,  that  where  a  tithe  is  due  by  custom,  the  time  and 
manner  of  paying  it  are  ascertained  by  the  custom  ;  and  indeed  there  seems 
to  be  no  oiher  way,  than  by  the  custom,  to  ascertain  the  time  and  manner 
of  paying  a  tithe,  which  is  only  due  by  custom. 

But  the  time  and  manner  of  paying  tithes  of  houses  in  London  are  ascer- 
tained by  statutes. 

By  the  37  H.  8,  c.  12,  §  2,  it  is  enacted,  "  That  the  inhabitants  of  the 
city  of  London  shall  yearly,  without  fraud  or  covin,  pay  their  tithes  to  the 
parsons,  vicars,  and  curates  of  the  said  city,  after  the  rate  following ;  that 
is  to  wit,  of  every  ten  shillings  rent  by  the  year  of  every  house  within  the 
said  city  sixteen  pence  halfpenny,  and  of  every  rent  of  twenty  shillings  of 
every  such  house  two  shillings  and  ninepence." 

||Vide  the  decisions  on  this  statute,  Gwill.  Ifi4,  329  ;  Noy,  130;  2  Inst.  660;  Gwill. 
299,503,  546,  891,  1054;  2  Ves.  J.,  563;  4  Price,  65;  5  Price,  14;  9  Ves.  155; 
2  Ves.  &  B.  1 ;  13  Ves.  9 ;  Toll,  on  Tythes,  229,.  (3d  edit.)  ;  and  see  cure,  p.  8,  nutd.\ 

And  by  §  11,  it  is  enacted,  "  That  the  said  inhabitants  shall  pay  their 
tithes  quarterly,  by  even  portions." 

But  by  §  18,  it  is  enacted,  "  That  where  a  less  sum  than  is  by  this  act 
directed  to  be  paid  for  tithe,  hath  been  accustomed  to  be  paid  for  the  tithe 
of  any  house,  that  then  the  inhabitant  of  such  house  shall  pay  tithe  only 
after  such  rate  as  hath  been  accustomed." 

By  the  22  and  23  Car.  2,  stat.  2,  c.  15,  §  1  &  2,  after  reciting  that  tithes 
in  the  city  of  London  were  paid  with  great  inequality,  and  are  since  the 
late  dreadful  fire,  in  rebuilding  the  same,  by  taking  away  of  some  houses, 
altering  the  foundations  of  the  others,  and  the  new  erecting  of  others,  so 


46  TYTHES. 

(Q)  In  what  Cases  the  Payment  of  Tithes  suspended. 

disordered,  that  in  case  they  should  not,  for  the  time  to  come,  be  reduced 
to  a  certainty,  many  controversies  and  suits  of  law  might  thence  arise,  it  is 
enacted,  "  That  an  annual  certain  sum  of  money  therein  mentioned  shall  in 
lieu  of  tithes  be  paid,  in  all  the  parishes  within  the  said  city,  whose  churches 
have  been  demolished  or  in  part  consumed  by  the  late  fire." 

And  by  §  3,  it  is  enacted,  "  That  the  respective  sums  of  money  to  be  I 
paid  in  the  said  respective  parishes,  and  assessed  as  therein  is  directed, 
shall  be  deemed  and  taken  to  be  the  respective  certain  annual  maintenance 
(over  and  above  glebes  and  perquisites,  gifts  and  bequests,  to  the  respec- 
tive parson,  vicar,  or  curate  of  any  parish,  or  to  the  successors)  of  the  re- 
spective parsons,  vicars,  or  curates,  who  shall  be  legally  instituted,  inducted, 
and  admitted  into  the  said  respective  parishes." 

By  §  10,  it  is  enacted,  "  That  the  impropriator  or  impropriators  of  any 
of  the  said  parishes  shall  pay  and  allow,  what  really  and  bond  fide  they  have 
used  and  ought  to  pay  and  satisfy,  to  the  respective  incumbents  of  such 
parishes  at  any  time  before  the  said  fire,  and  the  same  shall  be  esteemed 
and  computed  as  part  of  the  maintenance  of  such  incumbent." 

|| The  tithes  of  these  parishes  were  augmented  by  stat.  44  G.  3,  c.  89, 
intituled  "  An  act  for  the  relief  of  certain  incumbents  of  livings  in  the  city 
of  London,"  whereby,  after  reciting  that  the  said  first-mentioned  act  had 
failed  in  providing  a  proper  maintenance  for  the  parsons,  vicars,  and  curates 
in  those  parishes,  inasmuch  as  the  respective  incomes  being  by  the  said  acts 
fixed  at  very  low  rates,  the  same  are,  by  the  decreased  value  of  money,  the 
enhanced  price  of  all  the  necessaries  of  life,  and  by  various  other  circum- 
stances peculiarly  attached  to  the  incumbents  of  the  city  of  London,  become 
greatly  insufficient  for  the  due  support  of  their  situation  and  characters,  it  is 
enacted,  that  instead  of  the  annual  tithes  of  the  parishes  within  the  city  of 
London,  and  the  liberties  thereof,  whose  churches  were  demolished  or  in 
part  consumed  by  fire,  the  annual  certain  tithes,  or  sums  of  money  in  lieu 
of  tithes,  of  those  parishes  shall  be  increased  to  certain  sums  in  the  act 
stated. 

Toller,  p.  232  ;  Mirehouse,  p.  295. :| 

(Q)  In  what  Cases  the  Payment  of  Tithes  may  be  suspended. 
1.  Of  the  Produce  nf  Lands  in  the  King's  Hands. 

It  is  laid  down  in  one  case,  that  the  king  is  exempted,  by  virtue  of  his 
prerogative,  from  the  payment  of  tithes. 
Cro.  Kliz.  511,  Wright  v.' Wright. 

But  in  another  case  it  was  holden,  that  even  the  demesne  lands  in  the 
crown  are  not  exempted,  by  virtue  of  the  prerogative,  from  the  payment 
of  tithes. 

Hard.r.  315,  Compost's  case. 

Tithes  are  not  due  of  the  produce  of  lands  in  the  king's  hands  ;  because 
the  appropriation  of  parochial  tithes  does  not  extend  to  such  lands. 

]  Johns.  387,  Karl  of  Hertford  v.  Leech. 

The  privilege,  however,  of  being  exempted  from  the  payment  of  tithes 
is  personal  to  the  king  ;  and  does  not  extend  either  to  his  grantee  or  lessee. 

1  Jon.  3S7,  Karl  of  Hertford  v.  Leech  ;  Cro.  Eliz.  511. 

2.   Of  the  Produce  »f  Lands  which  have  been  barren. 

By  the  2  &  3  Ed.  6,  c.  13,  §  5,  it  is  enacted,  "That  all  barren  hea+h  or 
waste  grounds,  other  than  such  as  be  discharged  of  the  payment  of  tithes 


TYTHES.  47 

(Q)  In  what  Cases  the  Payment  of  Tithes  suspended. 

by  act  of  parliament,  which  before  this  time  have  paid  no  titnes  by  reason 
of  their  barrenness,  and  now  be,  or  hereafter  shall  be,  improved  and  con- 
verted into  arable  ground  or  meadow,  shall  from  henceforth,  after  the  end  of 
seven  years  next  after  such  improvement,  pay  tithes  of  the  corn  and  haj 
growing  upon  the  same." 

There  is  not  in  this  statute  an  express  suspension  of  the  payment  of 
tithes,  for  the  lands  therein  mentioned  ;  but  there  is  certainly  an  implied 
suspension,  for  the  space  of  seven  years  next  after  the  improvement  of  the 
lands. 

2  Inst.  C5G. 

It  has  been  constantly  holden,  that  only  such  land  is  barren,  within  the 
meaning  of  the  statute,  as  produces  nothing  profitable  by  reason  of  its  na- 
tural barrenness. 

2  Inst.  G56;  Freme.  335;  6  Mod.  96;  Ld.  Raym.  991;  3  Bulstr.  166;  [Stockwell 
v.  Terry,  1  Ves.  115;  2  Ilayn.  445.] 

|| The  construction  of  this  section  of  the  statute  was  much  discussed  in 
a  recent  case  in  the  Court  of  King's  Bench,  in  which  the  judge  at  Nisi 
Prius  laid  it  down,  that  in  order  to  bring  land  within  the  exemption  of  the 
statute  as  barren  land,  it  was  necessary  that  it  should  be  such  land  as  would 
not  bear  a  crop  worth  more  than  the  expense  of  ploughing,  sowing,  and 
reaping,  without  manuring  or  tillage  ;  that  is,  without  some  manuring  or 
tillage.  But  the  court  granted  a  new  trial,  and  decided  that  the  above  rule 
confined  the  exemption  within  too  narrow  limits  ;  and  that  the  true  rule 
for  determining  what  is  "  barren  land"  within  the  statute,  is  whether  the 
land  is  of  such  a  nature  as  necessarily  to  require  extraordinary  expenditure 
of  manure  or  tillage  in  order  to  bring  it  into  cultivation.  The  case  went 
to  a  second  jury  ;  and  the  judge,  upon  the  second  trial,  directed  the  jury 
according  to  the  rule  above  established.  A  second  verdict  was  found  for 
the  defendant  in  favour  of  the  exemption ;  and  a  new  trial  was  then  moved 
for,  on  the  ground  of  the  verdict  being  contrary  to  evidence.  It  appeared 
that  the  land  was  pronounced  by  several  witnesses  expressly  to  be  land  of 
good  natural  quality  ;  that,  on  first  breaking  it  up,  it  was  ploughed  three 
times,  which  was  twice  more  than  was  usual  in  breaking  up  grazing  land 
of  that  description  ;  and  that  it  was  limed,  which  was  usual  in  breaking 
up  land  not  ploughed  before,  and  the  quantity  of  lime  used  did  not  appear 
extraordinary.  The  crop  of  the  first  year  was  middling,  that  of  the  second 
year  was  much  better,  after  only  one  ploughing  and  without  any  manure. 
In  the  third  and  fourth  years,  a  witness  swore  the  land  was  worth  forty 
shillings  per  acre,  to  be  let  for  seven  years.  The  court,  after  argument, 
decided  (Bayley,  J.,  dissentimte)  that  the  evidence  was  to  be  considered 
with  reference  to  the  question  whether  the  land  was  barren  in  its  natural 
quality,  suapte  naturd  sterilis  ;  that  the  onus  lay  on  the  defendant  to  show 
that  it  was  so  ;  and  that  as  it  clearly  appeared  that  the  land  was  good  in 
its  natural  quality,  and  as  the  lime  (even  if  the  quantity  were  unusual)  ap- 
peared to  have  been  employed  for  the  purpose  of  getting  rid  of  the  inci- 
dental impediments  to  cultivation  left  in  the  land  by  the  whins  and  furze 
which  had  before  covered  it,  and  not  for  the  purpose  of  overcoming  any 
natural  wfecundity  in  the  soil,  (and  the  circumstance  of  the  expense  of 
the  lime,  being  caused  by  the  accidental  distance  of  the  pits,  could  not  be 
'aken  into  consideration,)  the  land  was  not  within  the  description  of  "bar- 


43  TYTHES. 

(Q)  In  what  Cases  the  Payment  of  Tithes  suspended. 

ren  land"  in  the  statute.  A  new  trial  was  accordingly  directed  ;  but  the 
defendant  declined  going  to  another  jury. 

Warwick  v.  Collins,  2  Maul.  &S.  349,  ace. ;  Selseav.  Powell,  6  Taunt.  297;  Kings- 
mill  v.  Bellingley,  3  Price,  465 ;  3  Eag.  &  Youn.  791,  S.  C. ;  Warwick  v.  Collins, 
5  Maul.  &  S.  166. 

If  land,  which  has  from  time  immemorial  been  full  of  bushes,  be  grubbed, 
and  converted  into  arable  ground  or  meadow,  tithes  of  the  corn  and  hay 
thereupon  grown  are  immediately  due;  because  the  land  was  not  naturally 
barren,  but  became  so  by  negligence. 

Cro.  Eliz.  475,  Sherington  v.  Fleetwood. 

If  wood-land  be  grubbed,  and  converted  into  arable  ground  or  meadow, 
tithes  of  the  hay  and  corn  thereupon  grown  become  due  immediately. 

Bunb.  159,  Beardmore  v.  Gilbert;  3  Bulstr.  165. 

Tithes  are  due  immediately  of  the  corn  and  hay  grown  upon  broom-land, 
which  has  been  grubbed  and  converted  into  arable  ground  or  meadow. 

Roll.  R.  39,  Mascal  v.  Price. 

If  land,  which  has  from  time  immemorial  been  overflown  by  the  sea,  be 
drained,  the  payment  of  tithes  of  the  corn  and  hay  grown  upon  this  land  is 
not  suspended  ;  because  the  land  was  not  in  its  nature  barren,  but  became 
so  by  accident. 

3  Bulstr.  165,  Wit  v.  Buck;  Cro.  Eliz.  475. 

This  statute  does  not  suspend  the  payment  of  any  tithes,  which  were 
paid  before  the  improvement  of  the  land. 

For  by  §  6,  it  is  enacted,  "  That  if  any  barren  heath  or  waste  grouna 
hath  before  this  time  paid  any  tithes,  and  the  same  be  hereafter  improved 
and  converted  into  arable  ground  or  meadow,  the  owner  thereof  shall, 
during  the  seven  years  next  after  the  same  improvement,  pay  such  kind  of 
tithes  as  were  paid  for  the  same  before  the  said  improvement." 

3.  Of  the  Produce  if  Glebe  Lands. 

So  long  as  the  rector  of  a  parish  holds  his  glebe  in  his  own  hands,  the 
payment  of  small  tithes  arising  thereupon  is  suspended  ;  notwithstanding  the 
vicar  of  the  parish  is  endowed  of  all  small  tithes  arising  in  the  parish :  for 
the  maxim  is,  ecclesia  decimas  solvere  ecclesice  non  debet. 

Cro.  Eliz.  479,  578  ;  Lutw.  1062.  |jlt  appears  that  this  maxim  only  applies  as  be- 
tween the  parson  and  vicar  of  the  same  church,  where  the  ecclesia  would  be  paying 
tithes  to  itself;  but  not  to  cases  of  a  distinct  ecclesiastical  person  claiming  exemption. 
4  Price,  R.  77.|| 

But  if  a  rector  let  his  glebe,  the  tenant  is  liable  to  pay  the  small  tithes 
arising  thereupon  to  the  vicar,  and  the  great  to  the  rector. 

Bro.  Dism.  pi.  17;  Cro.  Eliz.  479,  578. 

For  the  same  reason  the  vicar  of  a  parish  shall  not,  during  the  time  he 
occupies  his  own  glebe,  pay  any  tithes,  arising  thereupon,  to  the  rector  or 
impropriator  of  the  parish. 

1  Brownl.  69,  Harris  v.  Cotton. 

But  if  a  vicar  let  his  glebe,  the  tenant  is  liable  to  pay  the  great  tithes 
arising  thereupon  to  the  rector  or  impropriator,  and  the  small  to  the  vicar. 

1  Brownl.  69,  Harris  v.  Cotton. 

An  impropriator  is  likewise  exempted  from  the  payment  of  the  small 


TYTHES.  49 

(Q)  In  what  Cases  the  Payment  of  Tithes  suspended. 

tithes  arising  upon  his  glebe  to  the  vicar,  so  long  as  it  is  in  his  own  hands ; 
for  the  maxim  extends  to  him  also. 
Hetl.  31,  Booth  v.  Franklin;  Fitzg.  7. 

But  if  an  impropriator  let  his  glebe,  the  small  tithes  arising  thereupon 
are  due  to  the  vicar,  and  the  great  to  himself. 

Het!.  31,  Booth  v.  Franklin;  Fitzg.  7. 

If  a  rector,  vicar,  or  impropriator,  who  has  sown  his  glebe,  die  before 
the  corn  is  severed,  the  executor  of  the  rector,  vicar,  or  impropriator  must 
pay  tithe  thereof;  for  although  an  executor  be  in  general  the  representative 
of  his  testator,  he  is  not  so  in  his  spiritual  capacity. 

1  Brownl.  G9,  Harris  v.  Cotton. 

4.  Of  Discharge  of  Payment  if  Tithes  by  Composition  real. 

A  composition  real  is  where  an  agreement  is  made  with  the  incumbent 
of  any  church,  together  with  the  patron  and  ordinary,  under  their  hands 
and  seals,  that  the  lands  specified  shall  be  exempt  from  the  payment  of 
tithes  for  the  considerations  mentioned  in  the  stipulation.  Such  ccmposi- 
'<  tions  have  ever  been  allowed  to  be  a  good  discharge  of  the  payment  of 
tithes.  But  since  the  statute  13  Eliz.  c.  10,  for  preventing  the  alienation 
of  ecclesiastical  estates,  no  composition  of  this  kind  can  be  made;  and  such 
as  appear  to  be  of  later  date  are  holden  to  be  of  no  force.  It  seems,  (a) 
however,  that  there  have  been  decrees  made  in  courts  of  equity  to  confirm 
compositions  entered  into  by  consent  of  the  parson,  patron,  and  ordinary, 
though  subsequent  to  the  statute  ;  but  only  where  they  have  appeared  to 
be  for  the  benefit  of  the  church.  But  it  should  appear  from  later  deci- 
sions, (b)  that  even  compositions  confirmed  by  such  decrees  are  not  binding 
against  the  succeeding;  incumbent. 

Deg-.  p.  2,  c.  20.  («)  1  Wils.  128.  (&)  Attorney-General  v.  Cholmley,  3  Burn's 
E.  L.  41G ;  Ambl.  510 ;  6  Br.  P.  C.  332 ;  Mortimer  v.  Lloyd,  7  Br.  P.  C.  493 ;  Cart- 
wright  v.  Knowlton,  Scacc.  24  Apr.  1779. 

A  composition  real  commencing  within  time  of  memory,  its  commence- 
ment must  be  shown :  but  it  is  not  necessary  to  produce  the  actual  deeds 
under  which  it  took  place.  Presumptions  are  admitted  in  this  as  in  other 
cases :  and  the  existence  of  such  deeds  may  be  inferred  from  other  evi- 
dence. It  is  not  necessary  that  the  consent  of  all  the  parties  should  be  by 
the  same  deed.  This  may  frequently  not  happen :  in  the  case  of  the  king, 
who  consents  by  letters  patent,  it  never  can  take  place. 

Sawbridge  v.  Benton,  Anstr.  372. 

But  a  composition  real  is  not  supported  by  evidence  of  immemorial  pay- 
ment. 

Robertson  v.  Appleton,  Scacc.  22;  Feb.  1777,  cited  in  Anstr.  375. 

IJThis  doctrine  is  confirmed  by  a  decision  in  the  House  of  Lords;  and  in 
a  recent  case  the  Vice-Chancellor,  in  deciding  that  a  pecuniary  payment 
for  two  hundred  years  in  lieu  of  tithes  did  not  raise  any  presumption  of  a 
deed  creating  a  composition  real,  says,  "  There  is  no  case  in  which  a  com- 
position real  has  been  presumed  from  the  mere  fact  of  a  pecuniary  payment. 
If  such  a  rule  were  adopted,  every  payment  which  is  ranked  as  a  modus  might 
be  established  as  a  good  composition  real.  It  is  not  necessary  that  the 
deed  creating  the  composition  real  should  be  proved  by  direct  evidence. 
It  may  be  established  by  presumptive  evidence ;  but  if  there  be  no  other 

Vol.  X.— 7  E 


50  TYTHES. 

(R)  Of  a  Mudus  decimandi. 

evidence  of  the  composition  than  mere  payment,  the  legal  inference  and 
presumption  is  that  the  composition  originates  in  that  deed." 

Knight  v.  Halsey,  2  Bos.  &  P.  206 ;  Estcourt  v.  Kingscote,  4  Madd.  140;  and  see 
Chatfield  v.  Fryer,  1  Price,  253;  Ward  v.  Sheppard,  3  Price,  C08;  Bennett  v.  Skef- 
fington,  4  Price,  143. 

A  real  composition  for  tithes  is  now  frequently  effected  by  act  of  parlia-- 

ment. 

Where  an  enclosure  act  enacts  that  the  commissioners  shall  set  out,  allot, 
and  award  portions  of  common  to  impropriate  rectors  and  curate  in  lieu  of 
tithes,  and  shall  distinguish  by  their  award  the  several  allotments  given  to 
the  impropriate  rectors  and  curate,  and  the  same  are  declared  to  be  in  full  i 
satisfaction  of  tithes ;  the  tithes  are  not  extinguished  by  the  mere  setting 
out  and  allotting  parcels  of  common  to  the  rectors  and  vicar,  but  the  award 
of  the  commissioners  is  necessary  to  extinguish  them. 

Ellis  v.  Amison,  5  Barn.  &  A.  -17;  and  see  Cooper  v.  Thorpe,  1  Swanst.  R.  92. || 

(R)  Of  a  Mudus  decimandi. 

A  modus  is  a  real  composition  for  tithe. 

It  is  probable,  that  every  modus  had  its  commencement  by  deed  :  because 
a  composition  for  tithe  can  never  become  a  modus,  unless  the  patron  and 
ordinary  be  parties  thereto,  or  it  be  confirmed  by  them. 

Hardr.  381,  Ingolsby  v.  Ward,  2  P.  Wins.  573.  |jSee  a  modus  defined,  2  Black.  C. 
29;   13  Co.  12  ;  and  per  Wood,  B.,  in  Bennett  v.  Neale,  Wightw.  324;  Gwill.  1678.|] 

A  vicar  and  a  parishioner  had  made  an  agreement,  that,  for  the  time  to 
come,  a  certain  sum  of  money  should  be  paid  annually  in  lieu  of  tithes; 
and  it  was  confirmed  by  the  bishop.  This  was  holden  to  be  only  a  per- 
sonal contract,  and  not  such  a  real  composition  as  would  bind  the  successor 
to  the  vicar. 

Mar.  87,  Hitchcock  v.  Hitchcock. 

[An  agreement  by  which  the  rector  had  an  enclosure  and  allotment  in 
lieu  of  hfs  glebe  and  tithes,  was  holden  to  be  no  bar  to  the  successor's  claim 
of  tithes,  though  the  ordinary  was  a  party  to  it ;  and  it  was  sanctioned  by  a 
decree  in  equity.  To  this  agreement  it  should  be  observed,  that  the  patron 
was  not  a  party,  that  the  decree  was  by  consent,  and  nothing  was  allowed 
as  a  compensation  for  tithes  upon  improvements  infuturo. 

Ambl.  510,  Attorney-General  and  Blair  v.  Cholmley.] 

|| So,  where  a  covenant  or  agreement  by  deed,  intended  to  operate  as  a 
permanent  composition  in  lieu  of  tithes,  was  made  in  1712,  by  a  dean  and 
chapter,  who  were  seised  of  a  rectory  in  trust  for  the  support  of  a  grammar 
school,  in  consideration  of  a  perpetual  rent-charge  granted  by  a  lord  of  a 
manor;  it  was  held  that  this  covenant,  though  not  relating  to  the  posses- 
sions of  which  the  dean  and  chapter  were  seised  in  right  of  their  church, 
was  void  within  the  intent  and  meaning  of  the  disabling  statute  of  13  Eliz., 
and  consequently  did  not  prevent  their  successors  from  demanding  tithes  in 

kind. 

Dean  and  Chapter  of  York  v.  Middleburgh,  2  Youn.  &  J.,  196J| 

A  modus  may  be  prescribed  for,  without  producing  the  deed  by  which 
the  composition  was  at  first  agreed  upon  :  for  wherever  there  has  been,  for 
time  immemorial,  a  constant  annual  payment  in  lieu  of  tithe,  it  shall  be  in- 
tended that  the  payment  had  a  proper  commencement. 

1 1  Rep.  19;  Graunt's  case,  2  Mod.  321  ;  Cro.  Ja.  501  ;  2  P.  Wms.  573. 


TYTHES.  51 

(R)  Of  a  Modus  decimandi. 

A  modus  is  not  good,  unless  the  composition  were  at  first  reasonable. 

It  is  not,  however,  at  this  day  necessary  to  show  that  the  composition 
was  at  first  reasonable :  for  there  might  be,  when  the  composition  was 
agreed  upon,  some  circumstance  which  then  made  it  reasonable,  although 
this  cannot,  at  so  great  distance  of  time,  be  shown. 

2  P.  Wms.  573,  574,  Chapman  v.  Monson. 

A  modus  must,  at  its  commencement,  have  been  a  recompense  to  the 
person  to  whom  the  tithe  was  due  in  lieu  of  which  it  was  to  be  paid. 

If  a  man  prescribe  to  be  discharged  of  tithe,  in  consideration  of  being 
obliged  to  repair  the  body  of  the  church,  this  is  not  a  good  modus  ;  be- 
cause, as  the  parson  was  never  obliged  to  repair  the  body  of  the  church, 
this  could  never  have  been  a  recompense  to  him. 

1  Roll.  Abr.  G49,  pi.  8. 

But  if  a  man  prescribe  to  be  discharged  of  tithe,  in  consideration  of  be- 
ing obliged  to  repair  the  chancel,  this  is  a  good  modvs ;  for  this  must  al- 
ways have  been  a  recompense  to  the  parson,  he  being  bound  to  repair  the 
chancel. 

1  Roll.  Abr.  G50,  pi.  9. 

It  is  not  at  this  day  necessary  for  the  party  who  would  avail  himself  of  a 
modus  to  show,  that  it  was  originally  a  recompense  to  the  person  to  whom 
the  tithe  was  due  in  lieu  of  which  it  was  to  be  paid :  for  unless  it  appear, 
upon  the  face  of  the  prescription,  not  to  have  been  so,  it  shall  be  intended 
that  it  was. 

2  P.  Wms.  573,  Chapman  v.  Monson. 

It  is  laid  down,  that  a  modus  by  prescription  may  be  good  against  a 
vicar. 

Godb.  180. 

But  the  better  opinion  seems  to  be,  that,  as  every  modus  by  prescription 
must  have  begun  at  a  time  whereof  there  is  no  memory,  no  modus  by  pre- 
scription can  be  good  against  a  vicar ;  because  the  endowment  of  all  vicar- 
ages has  been  within  time  of  memory. 

2  P.  Wms.  522.  |jBut  if  a  modus  from  time  immemorial  is  proved,  it  must  be  pre- 
sumed to  have  commenced  before  the  endowment  of  the  vicarage,  and  when  the  parson 
was  entitled  to  all  the  tithes;  and  when  the  parson,  by  consent  of  the  patron  and 
ordinary,  afterwards  endowed  the  vicar  with  these  tithes,  this  did  not  prejudice  the 
parishioners,  or  deprive  them  of  the  benefit  of  the  modus  which  they  were  before  entitled 
to.  See  2  P.  Wms.  522 ;  1  Ves.  &  B.  148.  In  one  case,  however,  where  the  plaintiff, 
a  vicar,  stated  in  his  bill  for  an  account  an  endowment  of  the  vicarage,  in  13G7,  and  the 
answer  alleged  a  modus  payable  to  the  vicar  from  time  immemorial  for  vicarial  tithes, 
the  Master  of  the  Rolls  decreed  an  account;  since  it  appeared  on  the  pleadings  that 
there  was  no  vicarage  till  1367,  which  was  after  time  of  lecral  memory.  Scott  v.  .Smith, 
1  Ves.  &  B.  142  ;  Gwill.  1702;  Eag.  &  Youn.  G5S.  This,  however,  is  a  mere  formal 
defect  in  stating  the  modus  as  payable  to  the  vicar  for  vicarial  tithes;  and  so  it  was 
considered  in  a  previous  case,  Uhthoff  v.  Lord  Huntingfield,  1  Price,  237,  n. ;  and  in  a 
subsequent  case,  Prevost  v.  Benett,  1  Price,  236;  Gwill.  1723;  Eag.  &  Youn.  705, 
the  Court  of  Exchequer  permitted  the  defendant  to  restate  a  modus  similarly  alleged, 
for  the  purpose  of  trying  an  issue  as  to  the  existence  of  the  immemorial  payment.  And 
see  Lord  Redesdale's  observations  in  Bullen  v.  Michel,  2  Price,  481. || 

It  has  been  holden,  that  a  modus  by  prescription,  to  be  paid  to  the  rector 
in  lieu  of  all  tithes  arising  in  the  parish,  is  a  discharge  of  tithes  as  against 
the  vicar. 

1  Mod.  216. 

The  thing  paid  as  a  modus  is  usually  a  sum  of  money. 


52  TYTHES. 

(R)  Of  a  Modus  decimandi. 

But  the  payment  of  a  chattel  as  a  modus  is  good,  because  the  original 
agreement  might  as  well  have  been,  that  a  chattel  should  be  paid  in  lieu 
of  tithes,  as  that  money  should. 

Salk.  656  ;Ld.  Raym.  360. 

It  is  a  good  modus  to  prescribe  that  the  parson  and  his  predecessors  have, 
for  time  immemorial,  been  seised  in  fee  of  one  or  more  closes  of  land  lying 
in  the  parish  ;  and  have  constantly  received  the  profits  thereof,  in  lieu  of  a 
particular  species  of  tithe,  or  in  lieu  of  all  tithes  arising  in  the  parish. 

Hob.  42,  Cro.  Ja.  501 ;  Cro.  Eliz.  5S7,  736. 

An  indirect  modus  is  good. 

A  suit  being  instituted  for  tithes  in  kind  by  the  parson  of  B,  the  defend- 
ant moved  for  a  prohibition,  and  insisted  that  he  was  an  inhabitant  of  the 
parish  of  A  ;  that  every  inhabitant  of  the  parish  of  A,  who  held  any  pasture- 
land  in  the  parish  of  B,  had,  for  time  immemorial,  paid  tithes  thereof  to  the 
parson  of  A ;  and  that  the  parson  of  A  had  always  paid  two-pence  for  every 
acre  of  such  pasture  to  the  parson  of  13.  A  prohibition  was  granted.  And 
by  the  court, — It  is  exactly  the  same  thing  as  if  the  defendant  had  pre- 
scribed directly  for  a  modus  of  two-pence  for  every  acre  of  pasture  occupied 
by  him  in  the  parish  of  B. 

Cro.  Eliz.  136,  Cotford  v.  Pease. 

Tithe  is  so  absolutely  and  effectually  discharged  by  a  modus,  that  although 
this  be  not  paid,  the  right  of  taking  the  tithe  in  kind  cannot  be  again  re- 
sorted to. 

Hob.  41,  42,44. 

If  a  man,  through  ignorance,  set  out  corn  for  tithe,  upon  land  discharged 
of  tithe  by  a  modus,  and  the  parson  take  it  away,  an  action  of  trespass  lies 
against  him. 

Hob.  42,  Cooper  v.  Andrews. 

A  modus  is  not  destroyed  by  the  payment  of  tithe  in  kind  for  some 
years. 

2  Bulstr.  240,  Price  v.  Clascal. 

On  the  other  hand,  a  modus  must  be  paid  every  year,  although  no  tithe 
would  have  been  due  ;  for  the  modus,  it  being  a  recompense  for  the  tithe, 
becomes  a  spiritual  fee. 

Hob.  42,  44. 

If  the  land,  for  which  there  is  a  modus,  lie  fresh,  the  modus  must  never- 
theless be  paid. 

Harrlr.  184,  Ilolbeacb  v.  Whadcock. 

If  there  be  a  modus  in  pay  thirty  o^^,  in  lieu  of  the  tithe  of  all  eggs,  the 
thirty  eggs  must  at  all  events  he  paid. 

1  Roll.  Abr.  618,  pi.  3;  Salk.  657;   Lrl.  Raym.  3G0. 

[A  modus  payable  by  the  owners,  not  the  tenants,  of  the  land  which  is 
covered  by  it,  is  good.  The  common  practice,  to  be  sure,  is  to  make  the 
occupier  answerable:  but  perhaps  the  parties  may  have  thought  this  mode 
more  beneficial  in  point  of  security  :  and  the  courts  are  not  nicely  to  weigh 
the  validity  of  that  judgment.  And  the  land,  in  respect  of  which  the  modus 
is  claimed,  need  not  he  set  out  by  metes  and  hounds:  that  it  consists  of 
about  so  many  acres,  parcel  of  an  ancient  estate  called  R  estate,  consisting 
of  so  many  acres,  is  a  description  sufficiently  certain. 

Ord  v.  Clarke,  Anslr.  638.  See  also  Scarr  v.  Trinity  College,  Ibid.  765. 


TYTHES.  53 

(R)  Of  a  Modus  decimandi. 

A  modus  was  claimed  for  hay.  The  terriers  described  the  modus  to  be 
for  all  mowing  grass,  "  except  clover  and  the  like."  It  was  objected,  that 
as  the  article  excepted  was  not  known  beyond  time  of  memory,  a  modus 
containing  that  exception  must  be  modern.  But  the  court  thought  that  the 
expression  in  the  terrier  was  not  to  be  taken  as  an  exception  to  the  modus, 
but  merely  as  a  memorandum  that  the  modus  covered  natural  hay  only,  and 
did  not  extend  to  modern  artificial  grasses. 

Tranklyn  v.  Spilling,  Anstr.  760. 

It  should  seem,  that  a  modus  of  every  tenth  day's  cheese,  during  twenty 
weeks  from  Holyrood-day,  in  lieu  of  tithe  of  milk,  is  good. 

Wake  v.  Russ,  Anstr.  295.'] 

2.  Of  the  Certainly  required  in  a  Modus. 

A  mod  us  must  be  certain  as  to  the  sum  of  money,  or  other  thing,  which 
is  to  be  paid. 

A  modus  to  pay  two  shillings  in  the  pound  of  the  yearly  rent  of  the  land 
is  void,  because  as  the  yearly  rent  may  be  raised  or  fallen  at  pleasure,  the 
sum  of  money  to  be  paid  must  always  be  uncertain. 

12  Mod.  563;  Salk.  (157;  Ld.  Raym.  697 ;  Cunb.  20,  174;  ||Gwill.  5S7  ;  and  see 
note  on  this  subject,  Toll,  on  Tubes,  1S5.|| 

A  modus  to  pay  one  penny  or  thereabouts  for  every  acre  of  land  is  void, 
by  reason  of  the  uncertainty  of  the  sum  cf  money  to  be  paid. 

2  Roll.  Abr.  265,  D,  pi.  2;  2  P.  Wms.  572. 

j|So,  a  modus  of  three-pence,  payable  by  the  occupiers  of  every  ox-gang 
of  land,  containing  sixteen  acres  of  arable,  meadow,  and  pasture,  after  the 
rate  of  seven  yards  to  the  pole  or  perch,  in  lieu  of  the  tithe  of  hay  arising 
on  the  ox-gang,  has  been  held  bad  ;  for  there  is  no  specification  of  the  pro- 
portions of  each  different  species  of  land,  and  there  is  nothing  to  pay  for  an 
ox-gang  of  arable  only,  or  an  ox-gang  of  arable  and  pasture ;  and  by  the 
fluctuation  of  lands  in 'the  parish,  it  might  happen  that  the  arable  might  be 
occupied  separately  from  the  meadow  or  pasture. 

Markham  v.  Laycock,  Gwill.  1339  ;  and  see  17  Ves.  477. 

So,  a  modus  of  21.  8s.  Id.,  payable  within  a  township,  the  occupier  of 
each  farm  or  tenement  therein  paving  his  proportion,  is  bad  for  uncertainty, 
for  there  is  no  means  of  ascertaining  the  proportion. 

Wolley  v.  Hadfield,  3  Price,  210;  and  see  Norton  v.  Hammond,  1  You.  &  J.  94. || 

[A  modus  to  pay  a  fother  of  hay  in  lieu  of  tithes  is  void,  for  uncertainty. 

Ambl.  365,  Fenwick  v.  Lambe  and  others. 

A  modus  of  a  penny,  in  lieu  of  tithe  of  hay  of  the  lands  occupied  with 
each  house  in  the  parish,  is  bad. 

Travis  v.  Oxton,  Anstr.  309,  n. ;]  l|3  Wood,  523;  3  Gwill.  1066;  7  Bro.  P.  C.  49, 
S.  C.  nomine  Whitehead  v.  Travis. |j 

||But  a  modus  of  two-pence,  (by  name  of  hearth  silver,  garden  silver, 
shot  and  waxen  silver,)  payable  by  every  householder  or  inhabitant  in  lieu 
of  tithe  of  fuel,  fruits,  agistment,  and  wood,  has  been  held  good.  And 
this  case  was  distinguished  by  Eyre,  B.,  from  that  of  Travis  y.  Oxton  ; 
since  there,  the  payment  being  confined  to  houses  having  mowing  lands, 
if  the  mowing  lands  were  taken  from  the  house,  the  house  paid  nothing, 
and  the  share  to  which  thev  were  added  paid  no  more  than  before.     In 

e2 


54  TYTHES. 

(R)  Of  a  Modus  decimandi. 

this  case,  let  the  occupation  vary  as  it  might,  the  recompense  would  remain 
the  same. 

Bennett  v.  Read,  Gwill.  1272. 

But  in  a  case  where  a  modus  of  one  penny  for  the  tithes  of  all  hay  of 
every  inhabitant  and  occupier  having  land  producing  hay  was  set  up,  Sir, 
W.  Grant,  M.  R.,  doubted  the  distinction  drawn  between  the  above  cases, 
and  considered  the  question  of  law  so  doubtful  that  he  declined  to  decide 
it  till  the  existence  of  the  modus  had  been  established  by  an  issue.  How- 
ever, in  a  subsequent  case,  the  same  learned  judge  decided  in  favour  of  a 
similar  modus,  on  the  authority  of  Bennett  v.  Read  ;  saying,  that  as  there 
was  no  distinction  between  the  principal  case  and  Bennett  v.  Read,  if  that 
case  was  distinguishable  from  Travis  v.  Oxton,  so  was  the  principal  case. 
If  those  cases  were  not  to  be  distinguished,  Bennett  v.  Read,  being  the 
more  recent  authority,  ought  to  be  followed.  The  next  case  on  the  ques- 
tion is  that  of  Williamson  v.  Lord  Lonsdale,  where  neither  the  court  nor 
counsel  appear  to  have  adverted  to  the  last  decision  of  Sir  W.  Grant ;  and 
the  Lord  Chief  Baron,  again  questioning  the  distinction  between  Travis  v. 
Oxton  and  Bennett  v.  Read,  followed  the  example  of  Sir  W.  Grant  in 
Blackburn  v.  Jepson,  and  directed  an  issue  to  try  the  existence  of  the 
modus. 

Blackburn  v.  Jepson,  17  Ves.  473;  reversed,  vide  infra  ,-  Leyson  v.  Parsons,  18  Ves. 
173.  It  does  not  appear  in  what  way  the  mudus  was  laid  in  this  case.  Williamson  v. 
Lord  Lonsdale,  5  Price,  25. 

In  a  subsequent  case,  however,  Sir  Thomas  Plumer,  M.  R.,  on  the  au- 
thority of  Travis  v.  Oxton,  which  he  considered  in  point,  held,  that  a  modus 
of  one  penny,  payable  by  every  occupier  of  land  in  lieu  of  the  tithe  of  hay, 
was  bad  ;  and  he  thought  the  cases  of  Travis  v.  Oxton  and  Bennett  v.  Read 
clearly  distinguishable  from  each  other,  since,  in  the  former  case,  the  modus 
depending  on  the  occupation  of  land,  without  reference  to  quantity,  and 
being  open  to  the  possibility  of  being  reduced  to  a  single  penny  by  the  con- 
solidation of  farms,  could  not  stand.  In  Bennett  v.  Read,  the  sum  of  two- 
pence annually  was  payable  by  every  householder,  whether  occupying  land 
or  not ;  it  could  not,  therefore,  be  affected  by  consolidating  the  lands,  but 
depended  on  the  number  of  inhabitants. 

Busk  v.  Lewis,  Jacob  R.  3G3. 

The  above  case  of  Blackburn  v.  Jepson  afterwards  came  before  Lord 
Chancellor  Eldon,  on  appeal  from  the  Master  of  the  Rolls,  when  his  lord- 
ship, after  argument  and  examination  of  the  cases,  reversed  the  decree, 
directing  an  issue ;  and,  on  the  authority  of  Scott  v.  Fenwick,  Travis  v. 
Oxton,  Williamson  v.  Lord  Lonsdale,  and  Buske  v.  Lewis,  held  the  modus 
to  be  bad  ;  and  his  lordship  distinguished  the  ease  of  Bennett  v.  Read  from 
that  of  Travis  v.  Oxton,  on  similar  grounds  to  those  assigned  by  Sir  Thomas 
Plumer,  M.  R. 

Blackburn  v.  J< -pscn,  3  Swanst.  R.  123.] 

It  has  been  holden,  that  a  modus  to  deliver  nine  cart-loads  of  logwood  in 
lieu  of  all  tithes  is  certain  enough. 

Bunb.  279,  Wolferston  v.  Manwarin£;  [{Gwill.  G79 ;  2  Eag.  &  Youn.  ll.j| 

The  thing  for  which  a  modus  is  to  be  paid  must  likewise  be  certain 

The  defendant  in  a  suit  for  tithe  insisted,  that  the  inhabitants  of  a  certain 
tenement  had  been  accustomed  to  pay  a  sum  of  money  as  a  modus,  for  the 
tithe  of  all  corn  grown  upon  the  lands  usually  enjoyed  therewith.     The  mo- 


TYTHES.  55 

(R)  Of  a  Modus  decimandi. 

dus  was  holden  to  be  void  for  uncertainty  ;  because  the  words  usually  en- 
joyed therewith  imply,  that  the  same  lands  had  not  been  constantly  enjoyed 
with  the  tenement. 

2  P.  Wms.  462,  Carleton  v.  Brightwell. 

||  A  modus,  in  lieu  of  tithe  of  lambs,  and  of  the  wool  of  the  first  shearing 
of  such  lambs,  or  in  lieu  of  tithe  of  such  lambs,  is  ill  pleaded,  being  alter- 
native and  uncertain. 

Leech  v.  Bailey,  6  Price,  501. J| 

[A  modus  of  two-pence,  payable  by  every  householder  or  inhabitant  in 
the  parish  for  all  tithe  of  fuel,  of  fruits,  of  agistment,  and  of  wood,  is 
good. 

Bennett  v.  Read,  Anstr.  222,  n.]  ||See  the  cases  of  Travis  v.  Oxton,  Williamson 
v.  Lonsdale,  Leyson  v.  Parsons,  Busk  v.  Lewis,  Blackburn  v.  Jepson,  supra. || 

It  has  been  holden,  that  a  modus  for  a  farm  is  void  ;  because  a  farm  does 
not  consist  of  any  certain  quantity  of  land. 

Bunb.  129,  Burwell  v.  Coates. 

But  if,  in  prescribing  for  a  modus  for  a  farm,  the  quantity  of  land  of 
which  the  farm  consists  be  specified,  the  modus  is  good. 

Bunb.  160,  Finch  v.  Malsters.     [See  Scott  v.  Allgood,  Anstr.  16.] 

And  it.  is  not  necessary  that  the  thing  for  which  a  modus  is  to  be  paid 
should  be  always  described  with  certainty  in  prescribing  for  the  modus; 
because,  if  from  what  is  alleged  the  thing  can  fairly  be  ascertained,  the  mo- 
dus is  good,  it  being  a  maxim  of  law,  that  certum  est  quod  cerium  reddi 
potest. 

|j A  modus  for  the  parson  to  enjoy  a  certain  meadow,  and  also  various 
beast  grasses,  in  the  parish,  in  lieu  of  tithes,  is  void  for  uncertainty. 

Birch  v.  Stone,  Gwill.  649. 

So  is  a  modus  for  occupiers  of  certain  ancient  tenements  to  carry  a  cart- 
load of  peat  and  turf  from  a  certain  place  to  the  parsonage-house,  for  the 
use  of  the  parson,  on  such  a  day,  or  within  the  space  of  every  two  years,  as 
the  parson  should  require  the  same,  in  lieu  of  tithe  of  hemp,  flax,  and  hay 
arising  on  these  tenements ;  for  a  cart-load  is  uncertain,  and  may  be  drawn 
by  two  or  six  horses ;  and  there  is  no  right  of  turbary  in  the  parson  alleged. 

Tully  v.  Killner,  Gwill.  644;  and  see  Jenkinson  v.  Royston,  5  Price,  495,  where 
various  moduses  were  held  bad  for  uncertainty. 

Where  defendants  set  up  a  modus  of  two-pence  for  each  load  of  hay  of 
the  weight  of  one  ton,  payable  at  Easter  by  the  several  occupiers,  in  lieu  of 
tithe  of  hay;  and  by  their  answer  further  stated,  that  the  amount  of  the 
modus  payable  to  the  rector  under  such  custom  had  been  usually  ascer- 
tained by  a  person  on  behalf  of  the  rector  inspecting  the  ricks  of  hay  made 
within  the  parish  in  each  year,  and  forming  an  estimate  of  the  number  of 
loads  of  one  ton  weight  contained  in  each  rick,  upon  which  estimate  the 
whole  of  the  annual  modus  payable  to  the  rector  was  calculated,  but  that 
this  mode  of  estimating  the  weight  formed  no  part  of  the  custom,  the  modm 
was  held  bad  for  uncertainty  ;  the  time  of  weighing  being  uncertain,  and 
there  being  a  difference  in  the  weight  of  old  and  new  hay  ;  and  the  Lord 
Chancellor  Eldon  refused  an  issue. 

Goodenourrli  v.  Powell,  2  Russell,  21 9. [| 

A  modus  to  pay  twelve-pence  for  every  acre  of  upland,  was  holden  to  be 
good  ;  because  what  is  upland  may  be  ascertained. 

2  P.  Wins.  572. 


5G  TYTHES. 

(R)  Of  a  Modus  decimandi* 

The  prescription  was,  that  every  person  living  out  of  a  parish  should  pay 
fourpence  for  every  acre  of  meadow  or  pasture,  occupied  by  him  in  the 
parish.  This  was  decreed  to  be  a  good  modus;  Lord  King  Chancellor, 
and  Reynolds  and  Fortescue,  the  two  justices  who  assisted  him,  being  of 
opinion  that  it  was  certain  enough  ;  for  that  there  is  no  great  difficulty  in 
ascertaining  the  number  of  acres  of  meadow  or  pasture  occupied  by  a  per- 
son in  a  parish. 

2  P.  Wins.  572,  Chapman  v.  Monson;  ||S.  C.  nnm.  Chapman  v.  Bishop  of  Lincoln, 
Mos.  R.  200,  279 ;  Gwill.  070 ;  2  Eag.  &  Y.  17;  and  see  this  case  cited  by  Thompson, 
B.,  3  Anst.  038;  Gwill.  1427. || 

A  modus  for  a  park  is  good,  although  the  quantity  of  land  of  which  it 
consists  be  not  mentioned;  for  a  park  is  sufficiently  ascertained  by  its 
boundaries. 

1  Roll.  Abr.  051,  pi.  3. 

But  if  a  park  be  disparked,  the  modus,  unless  the  occupier  of  the  dis- 
parked  land  allege  that  it  is  to  be  paid  for  a  certain  quantity  of  land,  is 
void. 

1  Roll.  Abr.  051,  pi.  4. 

[A  modus  for  every  ancient  orchard  is  good. 

Anstr.  10.] 

The  time  of  paying  what  is  to  be  paid  as  a  modus  must  likewise  be 
certain. 

8  Mod.  375;  Bunb.  105,  171,  173. 

If  the  modus  be  to  pay  a  sum  of  money  yearly,  in  lieu  of  tithe,  on  or 
about  the  first  day  of  May,  this  is  not  a  good  modus,  because  the  time  of 
payment  is  uncertain. 

Bunb.  198,  Blacket  v.  Finn. 

The  prescription  was,  to  pay  a  sum  of  money  as  a  modus  for  the  tithe  of 
sheep  at  Easter,  or  when  the  sheep  shall  be  sold.  The  modus  was  holden 
to  be  void,  by  reason  of  the  uncertainty  of  the  time  of  payment. 

Bunb.  173,  Phillips  v.  Simes. 

||  But  it  is  held  sufficient  to  state  in  pleading  that  a  modus  is  payable  at  or 
about  a  particular  day ;  and  a  modus  may  be  established  though  proved  to 
be  payable  at  a  different  day  from  that  laid  in  the  bill. 

Gwill.  802,  1208. 

A  modus  for  one  penny  for  every  turkey  laying  eggs,  or  every  tenth  egg 
laid  by  such  turkey,  at  the  option  of  the  vicar,  in  lieu  thereof,  has  been 
held  void  for  uncertainty,  as  no  certain  time  was  given  if  the  option  were 
made  to  take  it  in  money ;  and  therefore,  if  there  were  a  change  of  vicars, 
it  would  be  uncertain  to  which  it  would  belong. 

Roberts  v.  Williams,  12  East,  33;  Gwill.  1050;  and  see  Scott  v.  Carter,  1  Young. 
&  .T.  45-2.  But  quasre,  whether  it  is  not  sufficient  to  state  the  modus  as  payable  yearly, 
and  supply  the  time  by  evidence'!     See  2  Eag.  on  Tith.  1 1 1,  and  cases  there  cited. 

3.  Of  a  Modus  which  amounts  to  a  Prescription  in  Non  decimando. 

A  modus  to  pay  the  tithe  of  part  of  a  thing,  which  is  tithable  of  common 
right,  in  discharge  of  the  tithe  of  the  whole  thing,  is  void. 

Cro.  .Ta.  47,  Webb  v.  Warner,  Ld.  Raym.  G77. 

If  the  modus  be,  to  pay  the  tithe  of  hay  grown  upon  some  lands,  in  dis- 
charge of  the  tithe  of  hay  grown  upon  all  other  lands  in  the  parish,  the 


TYTHES.  57 

(R)  Of  a  Modus  decimandi. 

modus  is  bad  ;  for,  as  it  is  only  a  recompense  as  to  part,  it  amounts  to  a 
prescription  in  non  decimando  as  to  the  residue  of  the  hay  grown  in  the 
parish. 

A  modus  to  pay  the  tithe  of  milk  part  of  the  year,  in  discharge  of  the 
tithe  of  milk  for  the  whole  year,  was  holden  to  be  void  ;  because  it  is,  in 
effect,  a  prescription  in  non  decimando  as  to  milk  for  part  of  the  year. 

Ld.  Raym.  360,  Hill  v.  Vaux;  Cro.  Eliz.  609;  Salk.  656;  12  Mod.  206;  Bunb.  307. 

But  if  the  tithe  of  a  thing,  as  of  wood,  be  only  due  by  custom,  a  modus 
to  pay  the  tithe  of  part  thereof,  in  discharge  of  the  tithe  of  the  whole,  is 
good ;  because  there  may  be  a  prescription  in  non  decimando  as  to  part  of 
such  a  thing. 

Salk.  656;  Ld.  Raym.  137;   12  Mod.  111. 

If  the  tithe  of  part  of  a  thing,  which  is  tithable  of  common  right,  be  by  a 
modus  made  more  valuable,  the  modus,  although  it  is  to  be  paid  in  dis- 
charge of  the  tithe  of  the  whole  thing,  is  good ;  because  such  modus  may 
be  a  recompense  for  the  tithe  of  the  whole  thing. 
Hob.  250;  Salk.  656 ;  12  Mod.  206 ;  Ld.  Raym.  360  ;  2  P.  Wms.  521. 

A  modus  to  pay  the  tenth  cheese  from  the  first  day  of  May  until  the  first 
day  of  August,  in  discharge  of  the  tithe  of  milk  for  the  whole  year,  is  good  ; 
because,  by  the  labour  of  making  it  into  cheese,  the  tithe  of  milk  is  made 
more  valuable  so  long  as  it  is  paid. 

Cro.  Eliz.  609,  Austin  v.  Lucas. 

A  modus  to  pay  a  quantity  of  a  thing,  which  is  tithable  of  common  right, 
in  discharge  of  the  tithe  of  the  whole  thereof,  which  a  man  may  happen  to 
have,  is  a  good  modus. 

A  modus  to  pay  thirty  eggs  of  the  produce  of  a  man's  own  hens,  in  dis- 
charge of  all  tithe  of  eggs,  would  be  void ;  for,  as  thirty  eggs  may  not  be 
the  tithe  of  all  the  eggs  a  man  has,  such  a  modus  may  amount  to  a  prescrip- 
tion in  non  decimando  as  to  some  ep-o-s. 

Ld.  Raym.  3G0,  Hill  v.  Vauxin;  [5  Price,  512.[| 

But  a  modus  to  pay  thirty  eggs,  in  discharge  of  the  tithe  of  all  the  eggs 
a  man  may  happen  to  have,  is  good ;  for  these  eggs,  which  are  not  to  be 
considered  as  tithe,  must  be  paid  at  all  events,  whether  the  person  who  is 
to  pay  them  have  hens  or  not. 

1  Roll.  Abr.  648,  pi.  3  ;  Ld.  Raym.  360. 

A  modus  for  the  tithe  of  one  thine;,  which  is  tithable  of  common  risrht, 
can  never  be  a  discharge  of  the  tithe  of  another  thing,  which  is  likewise 
tithable  of  common  right. 

The  modus  was,  to  pay  one  penny  for  every  mare  ;  and  it  was  alleged, 
that  this  was  to  be  a  satisfaction  for  the  tithe  of  horses,  mares,  and  colts. 
This  modus  was  holden  to  be  void  ;  because  a  modus  for  one  thing  which 
is  tithable  of  common  right,  it  being  in  fact  only  a  recompense  for  the  tithe 
of  that  thing,  can  never  be  a  recompense  for  the  tithe  of  another  thing  which 
is  likewise  tithable  of  common  right ;  and,  consequently,  such  modus,  which 
amounts  to  a  prescription  in  non  decimando  as  to  the  other  thing,  is  void. 

Uro.  Eliz.  446,  Grysman  v.  Lewes. 

4.  Of  a  Modus  which  has  not  been  constantly  paid. 

It  is  laid  down,  that  if  a  modus  have  not  been  constantly  paid  it  is  de- 
stroyed. 
Salk.  656,  The  Archbishop  of  York  v.  The  Duke  of  Newcastle. 
Vol.  X.— 8 


58  TYTHES. 

(R)  Of  a  Modus  (lecimandi. 

And  it  has  been  holden  in  one  case,  that  if  a  modus  be  for  the  tithe  of 
hay  grown  upon  a  certain  piece  of  land,  and  the  land  be  converted  into 
arable  land,  the  modus  is  destroyed. 

1  Roll.  Abr.  651,  Sharp  v.  Coult. 

But  it  is  in  other  cases  laid  down,  that  although  the  payment  of  a  modus 
be  suspended  or  cease  for  a  time,  it  may  be  revived  again. 

In  one  case,  the  contrary  to  what  was  holden  in  the  case  of  Sharp  and 
Coult  is  laid  down  expressly  ;  for  it  is  laid  down,  that  if  there  be  a  modus 
for  the  tithe  of  hay  grown  upon  a  certain  piece  of  land,  the  modus  is  only 
suspended  by  converting  the  land  into  arable  land,  and  revives  again  when- 
ever hay  is  grown  thereupon. 

Godb.  194,  Brown's  case.  ||1  Eag.  &  Y.  203;  Gwill.  9S2 ;  and  see  Cart  v.  Ilodg- 
skin,  3  Swanst.  1G0;  Gwill.  815;  3  Eag.  &  Youn.  1241. || 

In  another  it  is  laid  down,  that  if  an  orchard,  for  which  there  is  a  modus, 
be  disorcharded,  the  modus  is  suspended ;  but  that,  whenever  the  same 
ground  is  again  converted  into  an  orchard,  the  modus  is  revived. 

1  Roll.  R.  121,  Hooper  v.  Andrews. 

In  another  it  is  laid  down,  that  a  modus  is  not  destroyed  by  the  payment 
of  tithes  in  kind  for  some  years. 

2  Bulstr.  240,  Price  v.  Mascal. 

And  the  doctrine  of  these  three  cases  is  adhered  to,  and  confirmed  in  a 

modern  case. 
2  P.  Wms.  572,  Chapman  v.  Monson,  Hil.  3  G.  2. 

5.  Of  a  leaping  Modus. 

It  is  not,  as  has  been  already  observed,  necessary  that  a  modus  should 
have  been  constantly  paid,  yet  a  modus  must,  when  paid,  have  been  con- 
stantly paid  in  the  same  manner;  otherwise  it  is  called  a  leaping  modus, 
and  is  therefore  void. 

I  Eq.  Ca.  Abr.  369. 

The  modus  was,  to  pay  a  cer'ain  sum  of  money  for  the  tithe  of  certain 
premises,  whilst  they  continue  in  certain  hands;  but  if  the  premises  should 
come  into  other  hands,  then  the  said  sum  or  tithes  in  kind  were  to  be  paid 
at  the  election  of  the  parson.  This  modus  was  holden  to  be  bad.  And  by 
the  court — There  cannot  be  a  leaping  modus. 

Select  Ca.  in  Chan.  52,  Webber  v.  Taylor;  |  Gwill.  G5G;  1  Eag.  &  Y.  b02.|j 

6.  Of  a  Modus  which  is  too  rank. 

Wherever  the  sum  of  money,  or  other  thing  paid  as  a  modus,  is  of  greater 
value  than  it  can  be  fairly  supposed  the  tithes  for  which  it  is  paid  were  at 
the  time  of  its  commencement  worth,  such  modus,  which  is  called  a  too 
rank  modus,  is  void. 

A  prohibition  was  refused  because  the  modus  appeared  to  be  too  rank. 
And  by  Holt,  C.  J.,— Wherever  a  modus  runs  too  high,  the  presumption  is 
strong  that  it  is  not  a  modus. 

II  Mod.  60,  Startup  v.  Dodderidw,   Pascb.  1  Ann. 

In  a  case  about  two  years  after  the  contrary  was  laid  down. 

The  modus  appearing  too  rank,  it  w  as  decreed  by  the  Court  of  Exchequer 
to  be  a  temporary  composition,  ;uu!  not  a  modus:  but  the  decree  was  re- 
versed ;  for  churches  may  have  been  endowed  with  more  than  the  value  of 
the  tithes. 

Vin.  Abr.  tit.  Dimes,  D,  a.  pi.  17  ;  Pole  v.  Gardiner,  Mar.  5,  1707. 


TYTHES.  53 

(R)  Of  a  Modus  dccimandi. 

But  it  has  been  since  holden  in  divers  cases,  that  a  modus  which  is  too 

rank  is  void. 

In  one  case,  a  modus  of  five  shillings  for  every  acre  of  wheat  was  holden 
to  be  void,  as  being  too  rank ;  because  five  shillings  is  very  near,  if  not 
quite,  the  value  of  the  tithe  of  an  acre  of  wheat  at  this  day. 

Bunb.  10,  Benson  v.  Watkins,  Hil.  3  G.  1. 

|jOne  shilling  and  sixpence,  and  two  shillings  and  sixpence,  an  acre  for 
tithe,  have  been  severally  held  void  as  too  rank. 

Heaton  v.  Cook,  Wightw.  -281 ;  2  Eag.  &  Youn.  G10.l| 

In  another,  a  modus  of  one  shilling  for  a  milch  cow  was  holden  to  be 
void,  because  it  is  too  rank.  And  by  the  court— A  shilling  was,  at^the 
time  this  modus  must  be  supposed  to  have  had  its  commencement,  half  the 
yearly  value  of  the  milk  of  a  cow. 

Bunb.  73,  79,  [JFranklyn  v.  The  Master  of  St.  Cross.[l 

And  in  the  same  case,  a  modus  of  sixpence  for  a  calf  was  holden  to  be 
too  rank. 

The  reporter  of  this  case  does  indeed  say,  in  a  note,  that  since  this  case 
a  modus  of  sixpence  for  o  calf  has  been  holden  to  be  good. 

And  in  another  case,  not  two  years  before  that  of  Bonnet  v.  Jenkins,(a) 
a  modus  of  eleven-pence  for  a  milch  cow,  and  one  of  sixpence  for  a  calf, 
were  both  holden  to  be  good. 

Bunb.  57,  Roe  v.  The  Bishop  of  Exeter,  Hil.  6  G.  I  ;  i'Jenkinson  v.  Royston,  5  Price, 
495;  Gwill.  1878  ;  Holwell  v.  Blake,  MClell.  559.  (a)This  case  is  Fraiiklyn  v.  The 
Master,  &c,  of  St.  Cross  ;  Bennet  their  lessee,  and  Jenkins  the  vicar,  &c.  The  report 
in  Bunb.  78,  seems  not  much  to  be  relied  upon.]| 

It  may,  upon  comparing  the  two  last  cases,  be  doubtful  whether  a 
shilling  be  too  rank  a  modus  for  a  milch  cow,  and  sixpence  for  a  calf:  but 
they  both  confirm  the  doctrine,  that  a  modus  which  is  too  rank  is  void  ;  for 
the  two  questions,  Whether  a  particular  modus  be  too  rank,  and  whether 
a  modus  which  is  too  rank  be  void,  are  quite  distinct  and  independent  of 
each  other. 

||In  a  late  case,  where  a  modus  cf  one  shilling  for  every  milch  cow,  in 
lieu  of  the  tithe  of  milk  of  such  cow,  was  set  up,  the  Court  of  Exchequer 
directed  an  issue  on  the  modus. 

Leathes  v.  Newitt,  4  Price,  3.35.  It  appears  the  occupiers  succeeded  on  the  issue. 
8  Price.  562 ;  and  see  Tennant  v.  Wilsinore,  4  Wood,  181,  ncc.  In  Busk  v.  Lewis, 
Jacob. .363,  Sir  Thomas  Plumer,  M.  R.,  overruled  a  modus  of  one  shilling  for  a  milch 
cow,  in  lieu  of  tithe  of  milk,  as  too  high. 

A  modus  of  three-pence  a  year  for  every  cow,  and  sixpence  for  every 
calf,  in  lieu  of  tithes  of  cows,  calves,  and  milk,  is  gcod. 

Prevost  v.  Bennett,  2  Price,  R.  272. 

So,  a  custom  to  pay  for  every  foal  one  penny,  and  for  every  milch  cow 
two-pence,  and  for  every  heckforth,  or  heifer  that  had  had  but  one  calf, 
one  penny,  in  lieu  of  milk  and  all  profit  arising  from  such  cow  or  heifer, 
except  the  calf,  is  good. 

Jenkinson  v.  Royston,  5  Price,  495;  Gwill.  1878. 

A  modus  of  one  shilling  for  every  tenth  fleece,  in  lieu  of  the  tithe  of  the 
ten  fleeces,  was  held  rank. 

Lavn<j  v.  Yarborougfh,  4  Price.  383. 

A  modus  of  one  shilling  for  every  seventh  pig,  on  the  ninth  day,  was 
held  good  after  some  doubt. 

Bertie  v.  Beaumont,  2  Price,  303. 


60  TYTHES. 

(R)  Of  a  Modus  decimandi. 

But,  in  a  later  case,  a  modus  of  one  shilling  for  every  tenth  pig,  in  lieu 
of  tithe  of  such  pig,  was  held  rank,  and  also  objectionable;  because 
nothing  was  stated  to  be  payable  for  the  numbers  above  or  below  ten. 

Layng  v.  Yarborough,  4  Price,  383  ;  Gwill.  1841. 

A  modus  of  one  shilling  for  every  tenth  fleece,  in  lieu  of  the  tifheof 
the  ten  fleeces,  was  adjudged  void  by  the  Court  of  Exchequer,  as  being 
rank. 

Layng  v.  Yarborough,  4  Price,  383  ;  Gwill.  1841.     See  Eag.  on  Tith.  356,  notd. 

A  modus  of  three-pence  for  a  lamb,  in  lieu  of  tithe  of  lambs,  has  been 
held  not  rank. 

Bertie  v.  Beaumont,  2  Price,  303  ;  and  see  Layng  v.  Yarborough,  ubi  supra;  Drake 
v.  Smith,  5  Price,  3G9;  and  see  Askew  v.  Greenhow,  2  Price,  314. 

A  modus  of  eight-pence  for  every  colt  has  been  established  by  the  Court 
of  Exchequer. 

Hockmore  v.  Richards,  1  Wood,  485;  1  Eag.  &  Youn.  081. 

So,  modusss  of  one  penny  for  every  brood  of  goslings  not  exceeding 
five,  and  two-pence  for  every  brood  above  that  number  and  under  ten  ;(«) 
of  one  farthing  for  every  goose  and  gosling  under  seven  ;(b)  of  three  half- 
pence for  every  goose,  where  they  do  not  amount  to  a  tithable  number, 
and  tithes  in  kind  where  they  do;(c)  a  young  goose  with  the  feathers, 
payable  on  the  first  of  August,  in  lieu  of  all  tithes  of  geese  and  feathers  ;(rf) 
a  custom  to  pay  geese  in  kind,  to  be  delivered  before  Midsummer;  and 
if  there  be  less  than  seven  geese,  for  every  goose  a  halfpenny  ;  and  if  there 
be  seven  and  under  ten,  to  pay  one,  and  be  allowed  a  halfpenny  for  each 
•nose  wanting  to  make  up  the  number  often,  and  so  for  any  odd  number 
of  geese  ;(e) — have  been  severally  adjudged  good  moduses. 

fa)  Popplewell  v.  Canby,  2  Wood,  390.  (b)  Isaack  v.  Portbury,  E.  1711 ;  I  Wood, 
525;  1  Eag.  &  Y.  097.  (c)  Hoseawen  v.  Roberts.  5  Wood,  174;  2  Eag.  &  Y.  2-38; 
Gwill  946.  (V)  Huit  v.  Hill,  3  Keb.  705;  1  Eag.  &  Y.  511.  (e)  Jenkinson  v. 
Royston,  II.  1818;  5  Price,  495;  3  Eag.  &  Y.  9G  ;  Gro.  1S7SJJ 

[A  modus  of  five  shillings  an  acre  for  all  land  sown  with  wheat,  in  lieu 
of  all  tithes  of  wheat,  is  too  rank.  So,  of  two  shillings  and  sixpence  an 
acre  for  all  land  sown  with  other  grain,  in  lieu  of  all  tithe  of  such  grain. 
S  >,  of  two  shillings  an  acre  for  all  meadow  mowed,  and  one  shilling  and 
four-pence  for  upland  grass-ground  mowed,  in  lieu  of  all  tithes  of  grass 
and  pasture.  So,  of  two  shillings  and  sixpence  for  every  farrow  of  pigs 
littered,  in  lieu  of  all  tithes  of  them.  So,  of  eight  shillings  a  score  of 
Iambs,  in  lieu  of  the  tithe  of  lambs.  So,  of  one  penny  a  fleece  of  all  wool 
shorn  in  the  parish,  in  lieu  of  all  tithe  wool. 

Torriano  v.  Legge,  1  Bl.  R.  420;  2  Rayn.  519.] 

The  court  will  not  decree  against  a  farm  modus  on  the  ground  of  rank- 
ness:  for  there  is  a  very  material  difference  between  a  farm-payment,  and 
one  for  a  particular  species  of  produce.  In  the  former,  many  reasons  may 
have  prevented  the  tithes  from  being  agreed  for  at  their  proper  price.  _  The 
owner  may  have  meant  a  bounty  to  the  clergyman  ;  or  he  may  have  wished 
to  pay  for  an  exemption  from  tithes  for  the  sake  of  improvements.  Besides, 
it  is  hardly  possible  to  ascertain  the  comparative  value  of  the  land,  or  of 
the  produce,  in  former  times:  and  the  court  should  not  be  nice  in  judging 
of  the  value  or  the  goodness  of  the  bargain,  where,  by  any  probable  cir- 
cumstances, the  modus  may  have  been  a  real  agreement  between  the  parties 
before  time  of  memory.     More  especially  will  they  be  extremely  cautious 


TYTHES.  61 

(R)  Of  a  Mudus  dccimandi. 

in  deciding  such  a  question  without  the  intervention  of  a  jury,  if  the  least 
doubt  arise  as  to  the  fact  of  rankness. 

Atkyns  v.  Lord  Willoughby  de  Broke,  Anstr.  402. 

II  Where  the  rankness  of  a  modus  is  apparent  on  the  face  of  it,  a  court 
of  equity  will  decide  against  it,  without  directing  a  trial  at  law,  although 
the  question  of  rankness  is  purely  one  of  fact,  and  not  of  law  ;  as  where 
the  amount  of  the  moduses  appeared  to  be  equal  to  the  tithes  in  kind 
demanded  by  the  bill.  So,  also,  Lord  Hardwicke,  in  one  case,  said  he 
should  be  ashamed  to  send  it  to  a  jury,  to  try  a  question  of  modus  of 
thirty  pounds  per  annum,  where  the  whole  value  of  the  tithes  did  not 
exceed  sixty  pounds ;  and  he  decreed  accordingly  for  the  parson,  with 
costs. 

Gvvill.  1058,  1192,  1238,  1320,  Moore,  v.  Beckford,  cited  2  Bl.  R.  1257. 

But  the  cases  where  the  court  of  equity  has  allowed  the  objection  of 
rankness,  without  the  intervention  of  a  jury,  are  principally  with  reference 
to  the  value  of  particular  things  for  which  the  modus  has  been  set  up  ;  as 
where  it  is  so  much  for  a  sheep  or  lamb,  or  a  particular  kind  of  product, 
the  value  of  which  may  be  shown  at  those  times:  but  moduses  depending 
on  the  value  of  lands  at  particular  times,  present  a  much  more  complicated 
question ;  since  such  value  varies  by  different  means,  by  fluctuations  of 
traffic  and  commerce,  by  improvements  in  cultivation,  by  accidental  rise 
or  depreciation,  and  various  other  circumstances,  which  render  such 
moduses  more  uncertain,  and  consequently  more  fit  subjects  for  the  inves- 
tigation of  a  jury. 

Chapman  v.  Smith,  Gwill.  847  ;  O'Connor  v.  Cook,  6  Ves.  6G5  ;  8  Ves.  535;  Gwill. 
1C24  ;  and  see  Toll,  on  Tithes,  204,  205  ;  2  Eag.  on  Tith.  190.|| 

7.  Of  a  Modus  which  is  liable  to  Fraud. 

A  modus  of  one  penny  for  the  tithe  of  all  hay  arising  upon  a  farm  being 
prescibed  for,  it  was  objected,  that  the  modus  is  liable  to  fraud  ;  for  that 
all  the  land  may  be  turned  into  meadow,  and  then  only  one  penny  will  be 
paid  for  the  tithes  of  the  whole  farm:  but  the  modus  was  holden  to  be 
good. 

Bunb.  162,  Finch  v.  Masters;  ||Gwill.  G52 ;  vide  ante,  p.  53.  It  seems  doubtful 
whether  the  word  "hay,"  in  some  of  the  moduses  of  "  hay-penny,"  does  not  mean 
something  quite  distinct  from  tithe  of  hay.     2  Eag.  on  Tith.  81,  note.|| 

The  modus  was,  that  every  person  who  lived  out  of  a  parish  should  pay 
four-pence  for  every  acre  of  meadow  or  pasture  occupied  by  him  in  the 
parish.  It  was  objected,  that  such  a  modus  is  liable  to  great  fraud  ;  for 
that  many  persons  would  live  out  of  the  parish  to  avoid  paying  tithes  in 
kind  ;  and  others  would,  by  threatening  to  leave  the  parish  if  he  did  not 
do  it,  compel  the  parson  to  take  less  than  the  worth  of  his  tithes.  It  was 
answered,  that  if  the  being  liable  to  fraud  is  an  objection  to  the  goodness 
of  a  modus,  scarce  any  modus  will  be  good,  because  every  one  is  in  some 
degree  liable  to  fraud.     The  modus  was  holden  to  be  good. 

2  P.  Wms.  569,  571,  572,  Chapman  v.  Monson  ;  ||S.  C.nom.  Chapman  v.  Bishop 
of  Lincoln,  Mos.  R.  2G6  ;  Gwill.  679  ;  2  Eag.  &  Y.  11. || 

S.Ofa  Mod  us  for  such  Persons  as  live  out  of  the  Parish. 

It  has  been  holden,  that  a  modus  for  such  persons  as  live  out  of  the  parish 
is  unreasonable ;  for  that  the  inhabitants  of  the  parish,  as  being  liable  to 

F 


62  TYTHES. 

(R)  Of  a  Modus  decimandi. 

the  charge  of  the  repairs  and  vestments  of  the  church,  ought  to  be  most 
favoured  in  the  payment  of  tithes. 

1  Lev.  11(3,  Bawdry  v.  Bushell. 

But  in  a  modern  case  such  a  modus  was  holden  to  be  good ;  and  the 
opinion  of  the  court,  in  the  case  of  Bawdry  v.  Bushell,  is  not  only  said  to 
have  been  a  hasty  one,  but  the  ground  of  it,  namely,  that  only  parishioners 
are  liable  to  the  charges  of  repairs  and  vestments  of  the  church,  is  expressly 
denied  to  be  law. 

2  P.  Wins.  5G7,  574,  Chapman  v.  Monson  ;  |JS.  C.  nam.  Chapman  v.  Bishop  of 
Lincoln,  Mos.  R.  2GG ;  Gwill.  679;  2  Eag.  &  Y.  ll.|| 

9.  Of  the  Extent  if  a  Modus. 

A  modus  for  a  garden  extends  only  to  the  ancient  ground  of  the  garden ; 
for,  if  more  ground  be  laid  to  the  garden,  the  modus  does  not  extend 
thereto. 

Bunb.  79,  Perrot  v.  Markworth. 

If  a  modus  be  to  pay  at  the  rate  of  a  certain  sum  by  the  acre  for  the  tithe 
of  all  hay  grown  in  the  parish,  the  modus  extends  to  clover,  saintfoin,  and 
all  other  things  of  the  grass  kind,  ahhough  the  cultivation  of  some  of  these 
has  been  lately  introduced  into  the  parish. 

Lutw.  1071  ;  Bunb.  79,  344. 

But  if  a  modus  be  for  the  tithe  of  ail  hay  grown  in  the  parish,  or  for  the 
tithe  of  all  hay  grown  upon  a  pardcular  farm  in  the  parish,  the  modus 
extends  only  to  the  ancient  meadow  of  the  parish  or  farm. 

Filzgib.  53,  Fox  v.  Aide. 

It  has  been  holden,  that  if  a  mill  be  erected  upon  a  piece  of  land,  for 
which  there  is  a  modus,  the  modus  extends  to  the  mill. 

1  Roll.  Abr.  651,  Russel  v.  More,  Trin.  39  Eliz. 

But  this  case  does  not  seem  to  be  law  ;  for  in  a  later  case  it  was  holden, 
that  a  mill,  although  it  be  erected  upon  land  discharged  of  tithes,  is  liable 
to  the  payment  of  tithe. 

Cro.  Ja.  429,  Anon.,  Trin.  15  Ja.  1.  l|See  C.  B.  Dodd's  MS.  204  ;  1  Eag.  &  Y. ; 
Talbot  v.  May,  3  Atk.  17;  Gwill.  782;  2  Eag.  &  Y.  93;  and  see  1  Eag.  on  Tith. 
396.H 

||  Where  a  mill  was  erected  on  land  discharged  by  an  enclosure  act  from 
;ill  small  tidies  payable  in  respect  thereof,  it  was  held,  that  the  mill  was 
exempted  from  tithes  under  the  act. 

Caches  v.  Haynes,  Gwill.  125G;  4  Wood,  588;  3  Eag.  &  Y.  132G.|| 

If  there  be  a  modus  for  a  mill,  in  which  there  has  always  been  but  one 
pa'n-  of  stones,  and  a  second  pair  of  stones  be  added  to  the  mill,  the  modus 
extends  to  these. 

4  Mod.  45.  Grimley  v.  Falk'mgham.     ||See  3  Atk.  17;  3  Yes.  &  B.  71. || 

If  the  stream  of  a  mill,  for  which  there  is  a  modus,  be  by  the  act  of 
God  changed  from  its  usual  course,  and  afterwards  the  owner  pull  that  mill 
down,  and  erect  a  new  mill  upon  the  new  stream,  the  modus  extends  to 
the  new  mill. 

1  Roll.  Abr.  Gil,  pi.  1. 

But  if  the  stream  had  been  changed  by  the  act  of  the  owner,  the  new 
mill  would  have  been  liable  to  the  payment  of  tithe. 

1  Bull.  Abr.  Gil,  pi.  1. 


TYTHES.  63 

(S)  Of  a  Prescription  in  Nan  decimando. 

||  Where  a  defendant  in  a  tithe  suit  set  up  a  farm  modus,  and  an  issue 
was  directed  to  try  whether  the  ancient  farm  consisted  of  the  lands  men- 
tioned in  the  answer,  and  whether  a  certain  modus  had  been  immemorially 
payable  for  the  tithes  arising  upon  it ;  and  the  jury  found  that  the  farm 
consisted  of  those  lands,  together  with  four  other  closes,  and  was  covered 
by  a  modus :  the  circumstance  of  the  farm  consisting  of  other  lands  than 
those  mentioned  in  the  pleadings,  was  held  no  ground  for  a  new  trial, 
unless  the  plaintiff  could  show  that  he  had  evidence  respecting  those  four 
closes,  which,  on  the  supposition  that  they  were  parcels  of  the  alleged 
ancient  farm,  might  materially  vary  the  substance  of  the  case. 
Bailey  v.  Sevvell,  1  Russ.  R.  239.|| 

(S)  Of  a  Prescription  in  Nun  decimando. 

A  spiritual  person  ma}"  prescribe  in  nan  decimando ;  because  every 
such  person  was,  at  the  common  law,  capable  of  receiving  a  grant  of  tithes. 

1  Roll.  Abr.  653;  Cro.  Eliz.  206,  216,  511;  Cro.  Car.  423. 

Another,  and  the  principal  reason,  is,  that  the  church  does  not  lose 
any  thing  by  such  prescription  ;  a  spiritual  person  having  the  benefit 
thereof. 

The  churchwardens  of  a  parish,  although  they  hold  land  for  repairing 
the  church,  cannot  prescribe  in  non  decimando  for  the  land  ;  because  they 
|  are  not  spiritual  persons. 

1  Roll.  Abr.  653,  pi.  6. 

If  a  layman  be  tenant  for  years,  to  a  spiritual  person,  of  land  which  is 
discharged  of  tithes,  he  may  prescribe  in  non  decimando  for  the  land  ;  be- 
cause, as  the  possession  of  the  tenant  is  in  point  of  law  the  possession  of 
the  landlord,  the  prescription  in  this  case  would  be  in  the  right  of  a  spiritual 
I  person. 

I  Roll.  Abr.  653,  pi.  4;  Cro.  Eliz.  216,  512,  785;  Moor.  219. 

But  if  a  spiritual  person  grant  an  estate  of  inheritance  in  land,  for  which 
[the  spiritual  person  might  himself  have  prescribed  in  non  decimando,  to  a 
I layman,  the  grantee  cannot  prescribe  in  non  decimando;  because  the  pre- 
'scription  would  be  in  his  own  right. 

Cro.  Car.  423;  Hardr.  315;  2  Keb.  29;  1  Sid.  320. 

It  has,  however,  been  holden,  that  a  layman,  who  holds  land  by  copy 
I  of  court-roll  of  a  manor  discharged  of  tithes,  may  prescribe  in  non  deci- 
hnundo  for  the  land,  although  he  has  an  estate  of  inheritance  therein. 

|     Cro.  Eliz.  7S4;  Crouch  v.  Fryer,  Yetv.  2 ;  j]Gwill.  218;   1  Eag.  &  Y.  167.     See 
IMonck  v.  Hoskisson,  Simon's  R.  280.j| 

A  layman  may  presciibe  in  modo  decimandi,  but  he  cannot  prescribe  in 
\non  decimando,  for  any  thing  which  is  tithable  of  common  right ;  because 
a  layman  was  not,  at  the  common  law,  capable  of  receiving  a  grant  of 
'tithes  ;  and  it  has  been  holden  in  favour  of  the  church,  that  the  right  of 
tithes  cannot  be  taken  away,  unless  an  actual  recompense  be  paid  for  the 
I  same,  or  unless  the  instrument  by  which  the  land  has  been  thereof  dis- 
j charged  be  produced. 

II  Rep.  13;  1  Roll.  Abr.  653;  Cro.  Eliz.  293,  512,  599,  763;  Hob.  296;  2  P. 
'Wms.  573. 

It  has  been  holden,  in  two  modern  cases,  that  a  layman  can  no  more 


64  TYTHES. 

(S)  Of  a  Prescription  in  Non  decimando. 

prescribe  in  non  decimando  against  an  impropriator  than  against  a  rector ; 
for  that  both  are  equally  entitled  of  common  right  to  tithes. 

Bunb.  3-25,  Charlton  v.  Charlton;  Ibid.  345,  The  Corporation  of  Bury  v.  Evans. 
|| This  doctrine,  which  has  been  frequently  doubted,  and  regretted,  by 
able  judges,  is  now  completely  established  as  law;  and  it  is  settled,  that 
evidence  of  long  and  uninterrupted  retainer  of  tithes  by  a  layman  can  no 
more  raise  a  presumption  of  grant  as  against  a  lay  impropriator  than  against 
a  spiritual  rector.  In  Fanshaw  v.  More,  Gwill.  781,  13.  Clarke  observed, 
that  though  the  authorities  against  such  a  prescription  wTere  great,  the  rea- 
son of  them  grew  weaker  every  day.  Before  the  Reformation,  all  tithes 
were  ecclesiastical ;  and  a  laym.in  could  have  tithes  by  way  of  discharge 
only,  by  grants  of  parson,  patron,  and  ordinary.  Since  that  time,  there 
were  many  other  ways  both  of  having  tithes,  and  being  discharged  from 
them.  Since  tithes  have  been  in  the  hands  of  lay  impropriators,  many 
persons  have  purchased  discharges  for  their  particular  lands :  yet  if  these 
grants  are  lost,  by  the  common  fate  of  things,  those  persons  must  lose  the 
benefit  of  their  purchases.  It  is  very  hard  that  time,  which  strengthens  all 
other  rights,  should  weaken  this.  Lord  Loughborough,  in  an  extra-judicial 
opinion,  expressed  himself  strongly  against  the  doctrine  in  Rose  v.  Calland, 
5  Ves.  J.  186,  as  did  C.  B.  Macdonald  in  Petre  v.  Blencoe,  3  Anst.  945; 
and  Lord  C.  Eldon,  in  Berney  v.  Harvey,  17  Ves.  127,  observed,  that 
there  was  a  decision  against  it  in  the  Court  of  Exchequer  in  1727  ;  and 
that  both  Lord  Talbot  and  Lord  Hardwicke  had  struggled  against  it;  and 
in  Meade  v.  Norbury,  2  Price,  347,  Wood,  B.,  strongly  controverted  it. 
The  courts,  however,  have  decided,  that  it  is  too  firmly  settled  to  be  now 
overthrown. 

Fanshaw  v.  Rotheram,  1  Eden,  R.  270,  302,  note  (a)  ;  Nagle  v.  Edwards,  Gwill. 
1442;  Berney  v.  Harvey,  17  Ves.  119;  Heathcote  v.  Aldridge,  1  Madd.  236;  Meade 
v.  Lord  Norbury,  2  Price,  R.  338. 

To  establish  a  grant  from  a  lay  impropriator,  it  is  not,  however,  neces- 
sary to  produce  it;  it  is  sufficient  to  prove  that  such  a  grant  did  in  fact  exist. 
Ibid.;  and  see  Gwill.  1313;   1  Price,  253. 

There  is,  however,  a  settled  distinction  between  mere  non-payment  of 

tithes  (which  amounts  only  to  von  decimando,)  and  actual  pernancy  and 

possession  of  them,  separate  from  and  independent  of  any  interest  in  the 

land.     In  the  former  case  the  possession  has  been  unlawful,  and  the  court 

can  pay  no  regard  to  the  length  of  it ;  in  the  latter,  the  title  is  not  unlawful, 

and  long  possession  may  therefore  raise  a  presumption  of  grant. 

Scott  v.  Airey,  Gwill.  1174;  Strutt  v.  Baker,  2  Ves.  J.  G25;  Heathcote  v.  Aldridge, 
I  Madd.  230;  and  see  1  Eden,  R.  303,  note;  Bacon  v.  Williams,  1  Sim.  &  Stu.  415; 
3  Russell,  525.11 

It  is  said  to  have  been  holden  in  one  case,  that  the  inhabitants  of  two 

hundreds  may  prescribe  in  non  decimando,  for  a  thing  which  is  tithable  of 

common  right. 

1  Roll.  Abr.  054,  Kidden  v.  Edwards,  Pasch.  15  Car.  1.  ||This  was  a  claim  not  to 
pay  tithe  of  grain  ground  by  a  common  baker  in  his  trade;  and  on  this  ground  he  would 
seem  exempted  from  tithe  at  common  law  without  any  prescription.  See  Gwill. 
974;  3  Wood,  285;  2  Eag.  &  Y.  210;  Wightwick,  15;  Gwill.  1053;  1  Eag-.  on 
Tnh.  400J| 

Hut  iii  a  subsequent  case  it  is  laid  down,  that  neither  of  the  inhabitants 
of  two  hundreds,  nor  of  a  whole  county,  can  prescribe  in  non  decimando 
for  a  thing  which  is  tithable  of  common  right;  ami  ii  is  added,  that  as  no 


TYTHES.  65 

(U)  Of  a  Discharge  of  Tithes  by  Bull. 

single  inhabitant  of  a  hundred  or  county  can  in  such  case  prescribe  in 
non  decimando,  it  would  be  absurd  to  hold,  that  all  the  inhabitants  of  a 
hundred  or  county  may. 

Lrl.  Raym.  137;  Hicks  v.  Woodson,  Ilil.  8  W.  3 ;  12  Mod.  Ill ;  Salk.  055.  ||See 
Naele  v  Edwards.  3  Anst.  702  ;  Gwill.  1442 ;  Smith  v.  Johnson,  Gwill.  606  ;  Page  v. 
Wilson,  2  Jac.  &  AV.513.II 

It  is  indeed  true,  that  a  prescription  in  non  decimando  for  wood  by 
the  inhabitants  of  a  hundred  has  been  holden  good  ;  but  no  inference  can 
be  drawn  from  hence ;  because  tithe  of  wood,  which  does  not  renew  an- 
nually, is  not  due  of  common  right,  for  in  ancient  times  it  was  only  paid 
in  particular  places  by  custom. 

Ld.  Raym.  137  :  12  Mod.  Ill ;  Salk.  656 ;  Comb.  404.  ||It  is  settled,  that  such  a 
prescription  is  good  ;  but  it  can  only  be  claimed  by  a  well-known  division  of  the  coun- 
try. See  Nas;le  v.  Edwards,  3  Anst.  702;  Page  v.  Wilson,  2  Jac.  &  W.  513 ;  Chi- 
chester v.  Sheldon,  1  Turner,  245  ;  and  it  seems  a  liberty  cannot  so  prescribe.  John- 
son v.  Bois,  Gwill.  373 ;  3  Eag.  &  Y.  1210.  || 

(T)  Of  a  Discharge  of  Tithes  by  Grant. 

A  layman  was  not,  at  the  common  law,  capable  of  receiving  a  grant 
of  tithes. 

1  Rep.  45  ;  11  Rep.  13  ;  Cro.  Eliz.  293,  599,  763  ;  Hob.  296. 

But  the  land  of  a  layman  could,  at  the  common  law,  have  been  dis- 
charged of  tithes  by  grant,  provided  the  parson,  patron,  and  ordinary 
were  all  parties  thereto. 

2  Rep.  44,  Bishop  of  Winchester's  case. 

And  a  discharge  of  tithes  by  such  grant,  in  case  it  were  obtained  be- 
fore the  restrictive  statutes,  is  at  this  day  good. 
2  P.  Wms.  573,  Chapman  v.  Monson  ;  Cro.  Car.  423. 

A  layman  cannot  avail  himself  of  a  discharge  of  tithes  by  grant,  unless 
he  produce  the  deed  of  grant ;  for  if  this  be  not  produced,  tithes  must 
be  paid,  although  none  have  been  paid  within  time  of  memory ;  because 
a  layman  cannot  prescribe  in  non  decimando. 

2  P.  Wms.  57.  Chapman  v.  Monson  ;  11  Rep.  13  ;  1  Roll.  Abr.  653  ;  Cro.  Eliz.  293, 
512,  599,  763  ;  Hob.  296.  ||It  is  sufficient  to  give  evidence  of  the  existence  of  such  a 
grant  without  producing  it.     1  Eden,  R.  302,  note  (a) ;  1  Price,  253.  || 

(U)  Of  a  Discharge  of  Tithes  by  Bull. 

Spiritual  persons  heretofore  frequently  purchased  bulls  from  the 
pope,  for  discharging  their  lands  of  the  payment  of  tithes. 

2  Inst.  652,  653. 

The  practice  of  doing  this  seems  to  have  been  more  prevalent  after  the 
ordinance  of  Pope  Pascal  the  Second,  by  which  it  was  ordained,  that  only 
the  lands  of  the  Cistercians,  Hospitallers,  and  Templars,  should  be  ex- 
empted from  the  payment  of  tithes. 

Cro.  Ja.  454 ;  2  Rep.  44. 

It  was  the  opinion  of  Coke,  C.  J.,  that  the  pope  never  had  the  power 
rf  discharging  any  land,  belonging  to  a  subject  of  this  realm,  of  the 
payment  of  tithes. 

2  Inst.  653. 

For  the  sake  of  removing  all  doubt  as  to  this,  and  of  putting  a  stop  to 
::he  practice  of  purchasing  bulls  for  discharging  land  of  the  payment  of 
Vol.  X.— 9  f  2 


66  TYTHES. 

(W)  Of  a  Discharge  of  the  Payment  of  Tithes  by  Order. 

tithes,  it  is  by  the  2  II.  4,  c.  4,  after  reciting  that  the  order  of  the  Cister- 
cians in  this  realm  had  purchased  certain  bulls,  to  be  discharged  of  the 
tithes  of  their  lands  let  to  farm,  enacted,  "  That  the  religious  of  the  order 
of  Cistercians  shall  be  in  the  state  they  were  in  before  such  bulls  were 
purchased ;  and  that  if  they  of  the  said  order,  or  any  other,  religious  or 
seculars,  of  whatsoever  state  or  condition  they  be,  do  put  the  said  bulls 
in  execution,  or  do  from  henceforth  purchase  other  such  bulls ;  or  by  colour 
of  the  same  bulls,  purchased,  or  to  be  purchased,  do  take  advantage  in 
any  manner,  a  writ  of  praemunire  facias  shall  go  against  them." 

(W)  Of  a  Discharge  of  the  Payment  of  Tithes  by  Order. 

In  ancient  times,  monks  of  all  orders  were  discharged  of  the  payment 
of  tithes. 

But  as  monks,  in  process  of  time,  increased  to  a  great  degree,  and  had 
such  large  possessions,  that  holy  church  was  thereby  greatly  impoverished, 
et  filia  devoravit  matrem,  Pope  Pascal  the  Second  ordained,  that  monks' 
orders,  except  the  Cistercians,  Templars,  and  Hospitallers,  or  of  St. 
John  of  Jerusalem,  should  be  liable  to  the  payment  of  tithes. 

Cro.  Ja.  454  ;  2  Rep.  44;  Cro.  Ja.  57 ;  2  Inst.  652. 

This  ordinance  being  found  insufficient  to  prevent  the  impoverishment 
of  the  church,  another  was  some  time  after  made  by  Pope  Adrian  the 
Fourth ;  by  which  even  the  lands  of  those  three  orders,  except  the  lands 
quse  propriis  manibus  excoluntur,  were  rendered  liable  to  the  payment 
of  tithes. 

2  Rep.  44  ;  Cro.  Ja.  454 ;  2  Inst,  652  ;  Cro.  Ja.  57. 

The  privilege  of  being  discharged  of  tithes  extended  only  to  such  lands 
as  those  three  orders  were  possessed  of  about  the  year  1200;  for  all 
parochial  tithes  being  at  that  time  appropriated  to  the  persons  who  had 
the  cure  of  souls  in  the  respective  parishes,  it  followed  that  if  land  in  a 
parish  were  afterwards  granted  to  either  of  these  orders,  it  would  be 
liable  to  the  payment  of  tithes. 

|| It  extends  only  to  such  lands  as  the  three  orders  were  possessed  of  at  the  time  of 
the  last  general  council  of  Lateran,  in  the  seventeenth  year  of  King  John,  1215  ;  the 
exemption  being  granted  by  the  council,  and  allowed  by  the  general  consent  of  the 
realm.     2  Inst.  651;  Stavely  v.  Ullithorne,  Hard.  101. || 

||  The  privilege  of  exemption  was  also  granted,  by  Pope  Innocent  the 
Third,  in  the  year  1198,  to  the  order  of  Premonstratenses  (canons  of  St. 
Austin,  who  established  their  order  at  Premonstratum  in  Picardy ;)  and  the 
privilege  appears  to  have  been  allowed  in  the  twelfth  year  of  Edward  the 
Third,  and  a  decree  made  accordingly :  but  it  is  now  clearly  settled,  that 
as  this  bull  of  exemption  was  never  received  as  law  in  England,  like  the 
privilege  granted  to  the  other  orders  by  the  council  of  Lateran,  a  title  to 
exemption  cannot  be  derived  from  the  possession  of  lands  of  this  order. 

Dirkenson  v.  (ireenhill,  Gwill.  400:  Townley  v.  Tomlinson,  Gwill.  1004,  1017; 
Toller,  171.|| 

As  a  discharge  of  tithes  by  order  was  personal,  every  such  discharge 
must,  upon  the  dissolution  of  the  religious  houses  to  whose  persons  it  was 
annexed,  have  been  at  an  end,  if  it  had  not  been  continued  by  one  or; 
more  statutes. 

Cro.  Ja.  608,  Gerrard  v.  Wright. 

By  the  31  II.  8,  c.  13,  §  21,  it  is  enacted,  "That  the  king,  his  heirs 


TYTHES.  67 

(W)  Of  a  Discharge  of  the  Payment  of  Tithes  by  Order, 
and  successors,  and  every  person,  his  heirs  and  assigns,  which  hath,  or 
hereafter  shall  have,  any  manors,  lands,  tenements,  or  other  hereditaments 
whatsoever,  which  belonged,  or  now  belong,  unto  any  monasteries,  abba- 
thies,  priories,  nunneries,  colleges,  hospitals,  houses  of  friars,  or  other  re- 
ligious and  ecclesiastical  houses  or  places,  shall  have,  hold,  and  enjoy  the 
said  manors,  lands,  tenements,  and  other  hereditaments  whatsoever,  and 
every  of  them,  discharged  and  acquitted  of  the  payment  of  tithes,  as  freely, 
and  in  as  ample  a  manner,  as  the  said  late  abbots,  priors,  abbesses,  prior- 
esses, and  other  ecclesiastical  governors  and  governesses,  or  any  of  them, 
had,  held,  occupied,  possessed,  or  enjoyed  the  same,  or  any  parcel  thereof, 
at  the  days  of  their  dissolution,  suppression,  renouncing,  relinquishing, 
forfeiting,  giving  up,  or  coming  to  the  king's  highness,  of  such  monasteries, 
abbathies.  priories,  nunneries,  colleges,  hospitals,  houses  of  friars,  or  other 
religious  or  ecclesiastical  houses  or  places,  or  any  of  them.  ' 

By  this  statute,  the  privilege  of  being  discharged  of  tithes,  Avhich  the 
monks  of  the  order  of  Cistercians,  Templars,  Hospitallers,  or  of  St.  John 
of  Jerusalem,  had  enjoyed  for  all  the  lands  quamdhi  propriis  manibus 
excolunfur,  which  they  were  possessed  of  before  the  appropriation  of 
parochial  tithes,  was  continued  to  such  of  these  lands  as  were  thereby 
vested  in  the  crown. 

Cro.  Ja.  57,  008  :  Cro.  Car.  24 ;  Hob.  300. 

It  has  been  holden,  that  if  land,  heretofore  discharged  by  order  of  tithes, 
be  at  this  day  discharged  of  tithes,  a  right  of  common,  either  appendant 
or  appurtenant  to  the  land,  is  likewise  discharged  thereof. 

Bunb.  138,  Lambert  v.  Gumming.  ||So,  also,  under  a  grant  of  the  tithes  arising  out 
of  farms,  lands,  &c,  the  tithes  arising  in  respect  of  rights  of  common  appurtenant  to 
such  farms  or  lands  will  pass  ;  and,  consequently,  allotments  awarded  under  an  enclo- 
sure act,  in  respect  of  such  rights  of  common,  are  tithe  free.  Lord  Gwydyr  v.  Foakes, 
7  Term  R.  041  ;  Steele  v.  Mans.  5  Barn.  &  A.  22  ;  and  see  Stockwell  v.  Terry,  1  Ves. 
117;  Moncaster  v.  Watson,  3  Burr.  1375;  White  v.  Lisle,  4  Madd.  214;  Gwill. 
1920.H 

Evidence  of  a  great  tithe  having  been  paid  for  land,  whilst  it  was  in  the 
hands  of  the  monks  of  an  order  capable  of  a  discharge  of  the  payment  of 
tithes,  is  the  best  evidence  which  can  at  this  day  be  given,  that  the  monks 
were  not  possessed  of  the  land  before  the  appropriation  of  parochial  tithes. 
Bunb.  122.  Lord  v.  Turk.  ||See  Donnison  v.  Elslcy,  1  M'Clel..  &  Y.  24  ;  Carysfort 
v.  Wells.  Ibid.  GOG.  However,  proof  of  payment  of  tithe  by  the  land-owners  will  Dot 
destroy  the  exemption  ratione  ordinis,  if  it'  is  clearly  proved  that  the  lands  belonged 
to  the  monastery  before  the  council  of  Lateran  :  for  the  abbot  or  prior  could  nut  per- 
manently dispense  with  the  privilege  by  any  agreement  to  pay  tithe.  Stavely  v.  Ulli- 
thorne,  Hard.  101;  1  Wood,  24;  Gwill.  502.|| 

But  evidence  of  the  payment  of  a  small  tithe  for  land,  whilst  it  was  in 
the  hands  of  the  monks  of  an  order  capable  of  a  discharge  of  the  payment 
of  tithe,  is  not  evidence  of  this ;  because  lands  discharged  by  order  were 
only  discharged  of  the  payment  of  great  tithes. 

Clayt.  53,  pi.  92. 

A  tenant  for  life  of  land  which  was  discharged  by  order  of  the  payment 
of  tithes  at  the  time  of  the  dissolution  of  the  religious  house  to  which  it 
belonged,  is  not  at  this  day  discharged  of  the  payment  of  tithes ;  for  the 
construction  of  the  31  H.  8,  c.  13,  has  always  been,  that  the  privilege 
of  being  thereby  discharged  of  the  payment  of  tithes,  is  only  continued 
to  those  who  have  an  estate  of  inheritance  in  the  land. 

Ilardr.  174,  190  ;  Wilson  v.  Redman,  Clayt.  53. 


68  TYTHES. 

(W)  Of  a  Discharge  of  the  Payment  of  Tithes  hy  Order. 

||  It  has  been  since  decided,  that  a  tenant  for  life  under  a  settlement 
is  entitled  to  such  discharge.      Quaere,  as  to  a  mere  lessee  for  life  ? 

Hett  v.  Meads,  Gwill.  1515  ;  3  Eag.  &  Y.  Ca.  1384.|| 

It  was  found  by  a  special  verdict,  that  the  lands  in  question,  heretofore 
belonging  to  an  abbey  of  the  Cistercian  order,  were  discharged  of  the  pay- 
ment of  tithes  quamdiu  propriis  manibus  excoluntur ;  that  these  lands 
were  in  lease  for  years  at  the  time  of  their  being  vested  in  the  crown  by 
the  31  H.  8,  c.  13,  and  that  the  lease  was  now  expired  :  and  the  question 
was  whether  the  grantee  in  fee  of  the  crown  should  be  discharged  of  the 
payment  of  tithes  quamdiu  propriis  manibus  excoluntur  f  It  was  holden, 
that  he  should :  and  by  the  court — Although  the  tenant  for  years  paid 
tithes  for  the  lands  at  the  time  of  the  dissolution  of  the  abbey  ;  yet  as 
the  abbot  would  have  holden  them,  in  case  the  lease  thereof  had  expired 
before  the  dissolution,  discharged  of  the  payment  of  tithes  quamdiu 
propriis  manibus  excoluntur,  the  grantee  of  the  crown  ought  to  hold 
them  in  the  same  manner. 

Cro.  Ja.  559,  Porter  v.  Bathurst,  Cro.  Ja.  454 ;  Hardr.  190 ;  [|Cowley  v.  Keys, 
Gwill.  1308.|| 

By  the  27  II.  8,  c.  28,  §  1,  all  religious  and  ecclesiastical  houses, 
whose  possessions  were  not  of  the  value  of  more  than  two  hundred  pounds 
a  year,  were  to  be  dissolved;  and  the  lands,  tenements,  tithes,  and 
other  hereditaments  of  such  religious  and  ecclesiastical  houses  were  to 
be  vested  in  the  crown. 

And  by  §  2,  it  is  enacted,  "  That  every  person  who  now  hath,  or  here- 
after shall  have,  any  letters  patent  of  the  king's  highness  of  the  lands, 
tenements,  tithes,  or  other  hereditaments  which  appertained  to  any  religious 
house  heretofore  dissolved,  or  which  appertained  to  any  religious  house 
that  shall  be  suppressed  or  dissolved  by  the  authority  of  this  act,  shall 
have  and  enjoy  the  said  lands,  tenements,  tithes,  and  other  hereditaments, 
specified  in  their  letters  patent,  in  like  manner,  form,  and  condition  as  the 
abbots,  priors,  abbesses,  prioresses,  and  other  chief  governors,  had  or 
ouo-ht  to  have  the  same,  if  they  had  not  been  suppressed  or  dissolved." 

It  has  been  frequently  determined,  that  no  land,  heretofore  discharged 
by  order  of  the  payment  of  tithes  quamdiu  propriis  manibus  excoluntur, 
which  in  pursuance  of  this  statute  was  vested  in  the  crown,  is  discharged 
of  the  payment  of  tithes. 

Hub.  306  ;  Cro.  Ja.  57,  G08  ;  Cro.  Car.  24. 

There  is  in  the  31  II.  8,  c.  13,  a  clause  in  the  third  paragraph  to  the 
same  eifect,  concerning  the  lands  of  religious  houses  thereby  vested  in 
the  crown  :  but  it  is  plain,  from  a  subsequent  clause  in  the  twenty-first 
paragraph  of  the  31  II.  8,  c.  13,  by  which  such  lands  are  discharged  of 
the  payment  of  tithes,  that  the  legislature  were  sensible  that  such  lands 
were  nut  discharged  thereof  by  the  former  clause ;  for  if  they  had  been 
thereby  discharged,  the  inserting  of  another  clause  of  discharge  would 
have  been  altogether  nugatory. 

By  the  twenty-first  paragraph  of  the  31  II.  8,  c.  13,  only  such  lands, 
heretofore  discharged  by  order  of  the  payment  of  tithes  quamdiu  propriis 
manibus  excoluntur,  arc  discharged  of  the  payment  of  tithes  as  came  to 
the  hands  of  Henry  the  Eighth,  after  the  fourth  day  of  February,  in  the 
twenty-seventh  year  of  his  reign. 

In  consequence  of  this,  it  has  been  holden,  that  no  lands,  heretofore  dis- 


TYTHES.  G9 

(W)  Of  a  Discharge  of  the  Payment  of  Tithes  by  Order. 

charged  by  order  of  the  payment  of  tithes  quamdiu  propriis  manibus  ex- 
cohuitur,  which  were  vested  in  the  crown  in  pursuance  of  the  27  II.  7,  c. 
28,  were  discharged  of  the  payment  of  tithes  by  the  31  II.  8,  c.  13  ;  for  as 
the  lands  vested  in  the  crown  by  the  former  of  these  statutes,  were  by 
relation  vested  upon  the  fourth  day  of  February,  in  the  twenty-seventh 
year  of  the  reign  of  King  Henry  the  Eighth,  that  being  the  first  day  of 
the  session  of  parliament  in  which  the  27  II.  8,  c.  28,  was  made,  the  lat- 
ter statute  cannot  extend  to  those  lands. 
Hob.  306 ;  Cro.  Ja.  57,  608  ;  Cro.  Car.  24. 

It  has  been  holden  in  two  cases,  that  lands  heretofore  discharged  by 

order  of  the  payment  of  tithes  quamdiu  propriis  manibus  ezcoluntur, 

which  were  vested  in  the  crown  by  the  32  II.  8,  c.  24,(a)  are  not  at  this 

day  discharged  of  the  payment  of  tithes. 

2  Rep.  40,  The  Archbishop  of  Canterbury's  case,  Trin.  38  Eliz. ;  Cro.  Ja,  58,  Corn- 
-wallis  v.  Spalding,  Hil.  44  Eliz.  \\(a)  These  were  the  possessions  of  the  order  of  St. 
John  of  Jerusalem. || 

As  there  is  no  discharging  clause  in  this  statute,  such  lands  must,  if 
they  are  discharged  of  the  payment  of  tithes,  be  discharged  by  the  31 
H.  8,  c.  13. 

2  Rep.  46,  The  Archbishop  of  Canterbury's  case. 

It  appears,  indeed,  upon  comparing  the  discharging  clause  in  the  twenty- 
first  section  of  the  31  H.  8,  c.  13,  with  the  third  section  of  the  same 
statute,  that  the  discharge  extends  to  the  lands  of  religious  houses 
"  which  thereafter  shall  happen  to  be  dissolved,  suppressed,  renounced, 
relinquished,  forfeited,  given  up,  or  by  any  other  means  come  to  the  kings 
highness."  But  the  construction  in  one  of  the  cases  was,  that  the  words, 
or  by  any  other  means  come  to  the  king's  highness,  do  not  include  a  coining 
by  act  of  parliament ;  for  if  the  legislature  had  intended  to  include  a 
coming  to  the  king  by  act  of  parliament,  this,  which  is  the  highest  way 
of  coming,  would  have  been  mentioned  before  the  coming  by  dissolution, 
or  by  the  other  inferior  ways  which  are  therein  particularly  mentioned. 
And  in  support  of  this  construction,  a  case  was  relied  on,  in  which  it  had 
been  holden,  that  bishops  are  not  included  under  these  words  of  the  13 
Eliz.  c.  10,  "  Colleges,  deans  and  chapters,  parsons,  vicars,  and  others 
having  ecclesiastical  livings;"  because  as  persons  of  an  inferior  rank  are 
expressly  mentioned,  bishops,  if  it  had  been  intended  to  include  them, 
would  have  been  likewise  expressly  mentioned. 

But  it  has  been  holden  in  a  subsequent  case,  by  three  judges  against 
one,  that  lands  heretofore  discharged  by  order  of  the  payment  of  tithes 
quamdiu  propriis  manibus  excoluntur,  which  were  vested  in  the  crown  by 
the  32  H.  8,  c.  24,  are  at  this  day  discharged  of  the  payment  of  tithes ; 
for  that  the  words  in  the  third  paragraph  of  the  31  H.  8,  c.  13,  which 
thereafter  shall  happen  to  be  dissolved,  include  every  kind  of  dissolution, 
and  consequently  a  dissolution  by  act  of  parliament ;  and  that  the  words, 
or  by  any  other  means  come  to  the  king's  highness,  include  as  well  a 
coming  by  act  of  parliament  as  a  coming  by  any  other  way. 

1  Jon.  187,  Whitton  v.  Weston,  Trin.  4  Car.  1. 

And  in  a  still  later  case  it  is  said,  that,  although  there  may  have  been 
:  formerly  a  difference  of  opinion  as  to  this  point,  it  is  now  settled,  that  the 


70  TYTHES. 

(X)  Of  a  Discharge  by  Unity  of  Possession. 

discharging  clause  of  the  31  H.  8,  c.  13,  extends  to  lands  vested  in  the 
crown  by  the  32  H.  8,  c.  24. 

Freem.  299,  Star  v.  Elliot,  Mich.  31  Car.  2  ;  ||and  see  Urrey  v.  Bowyer,  Gwill.  250 ; 
Fosaet  v.  Franklin,  Gwill.  1579  ;  Dennison  v.  Elsley,  1  M'Clel.  &  Y.  1 ;  2  Bligh,  94, 
N.  S. ;  3  Eag.  &  Y.  1398  ;  Toller,  174,  and  cases  there  cited. 

||  It  is  to  be  observed,  that  the  orders  of  Cistercians  and  Hospitallers 
were  capable  of  other  discharges,  besides  the  qualified  exemption  of  their 
lands,  whilst  they  retained  them  in  their  own  occupation ;  and  that  the 
grant,  and  the  subsequent  confirmation  of  that  privilege  by  the  council  of 
Lateran,  did  not  deprive  them  of  the  benefit  of  any  absolute  discharge  for 
their  lands  to  which  they  were  then  entitled,  and  particularly  of  the  right 
of  prescribing  in  non  deeimando(ci)  for  themselves,  their  farmers  and 
tenants,  which  they  enjoyed  in  common  with  all  other  spiritual  persons. (b) 
Thus  in  a  case,(e)  in  which  it  appeared  that  the  lands  of  which  tithes  were 
demanded  were  part  of  lands  called  Bromley  Grange,  which  belonged,  at 
the  time  of  the  dissolution,  to  the  Abbey  of  Fountains,  which  was  one  of 
the  greater  monasteries  of  the  Cistercian  order,  and  that  they  had  never 
paid  tithes ;  the  court  presumed  an  absolute,  not  a  qualified  discharge 
ratione  ordinis,  although  it  was  proved  that  other  lands  in  Bromley 
Grange  paid  tithes  while  they  were  in  the  hands  of  tenants,  and  that  the 
lands  in  question  had  always  been  in  the  occupation  of  the  owners. 

(a)  To  support  such  a  prescription,  it  is  necessary  to  show  that  the  lands  were  in 
the  hands  of  the  religious  house  before  the  time  of  legal  memory,  and  not  merely  that 
they  wore  so  at  the  time  of  the  dissolution.  Markham  v.  Smyth,  11  Price,  126,  3 
Eag.  &  Y.  1071.  Where  there  is  evidence  of  the  possession  of  the  land  at  the  dis- 
solution, accompanied  by  proof  of  an  immemorial  usage  of  non-payment  of  tithes,  it 
seems  this  will  be  good  presumptive  evidence  that  the  land  belonged  to  the  monastery 
before  the  time  of  legal  memory.  Donnison  v.  Elsley,  1  M'Clel.  &  Y.  24 ;  Carysfort 
v.  Wells,  Ibid.  GOG ;  Norton  v.  Hammond,  1  Younge  &  J.  103  ;  Pritchall  v.  Honey- 
borne,  Ibid.  149.  The  presumption  may  be  strengthened  by  ancient  documents, 
showing  that  the  monastery  held  the  lands  at  any  remote  period  before  the  dissolution, 
although  after  the  commencement  of  legal  memory.  Norton  v.  Hammond,  supnl. 
(I,)  Fosset  v.  Franklin,  M.  1673  ;  T.  Raym.  225  ;  3  Keb.  208,  217  ;  1  Eag.  &  Y.  501 ; 
.Matthew  v.  Fitch,  Serjeant  Hill's  MSS.  vol.  25,  p.  152  ;  3  Eag.  &  Y.  1238  ;  Gwill.  778  ; 
Ingram  v.  Shaekstow,  Tr.  1748 ;  Joddrell's  MSS. ;  3  Eag.  &  Y.  1242 ;  Gwill.  819 ; 
Donnison  v.  Elsley,  M.  1824;  1  M'Clel.  &  Younge,  24;  2  Bligh,  94,  N.  S. ;  3  Eag.  & 
Y.  1402;  Norton  v.  Hammond,  M.  1826;  1  Younge  &  Jervis,  103.  (c)  Ingram  v. 
Thackstow,  sttprd. 

In  order  to  establish'  this  ground  of  discharge,  the  land-owner  must 
show  satisfactorily  that  the  lands  were  in  the  hands  of  the  monastery  be- 
fore the  council  of  Lateran,  and  also  at  the  dissolution  of  the  monastery. 
If  he  fails  in  either  point,  the  exemption  is  not  established. 

Norton  v.  Hammond,  1  Younge  &  J.  94.  || 

(X)  Of  a  Discharge  of  the  Payment  of  Tithes  by  Unity  of  Possession. 

So  long  as  land  in  a  parish  was  in  the  possession  of  an  abbot,  who  was 
also  possessed  of  the  rectory  of  the  parish,  the  payment  of  tithes  for  the 
land  was  necessarily  suspended;  because  the  abbot  could  not  pay  tithes 

to  himself. 
2  Rep.  47,  48,  The  Archbishop  of  Canterbury's  case. 

But  the  land  was  not  discharged  of  tithes  by  the  unity  of  possession; 
because  tithes  do  not  issue  out  of  land,  but  arc  collateral  thereto. 
1 1  Rep.  14.  Priddle  v.  Nipper;  2  Rep.  47,  49  ;  Cro.  Ja.  454  ;  Com.  503. 

And  consequently,  so  soon  as  the  possession  of  the  land  was  severed 


TYTHES.  71 

(X)  Of  a  Discharge  by  Unity  of  Possession. 
from  that  of  the  rectory,  the  land  became  again  liable  to  the  payment 
of  tithes. 
Com.  511,  Fox  v.  Bardwell,  2  Rep.  47,  49 ;  Cro.  Ja.  454 ;  11  Rep.  14. 

Nay  it  has  been  holden,  that  although  there  had  been,  previously  to 
the  dissolution  of  the  religious  house,  a  perpetual  unity  of  possession  of 
the  land  and  the  rectory  in  the  abbot  and  his  predecessors,  this  is  not 
an  absolute  discharge  of  the  tithes  of  the  land;  inasmuch  as  the  words 
of  the  discharging  clause  in  the  31  H.  8,  c.  3,  are  not  discharged  of 
tithes,  but  discharged  of  the  payment  of  tithes. 

2  Rep.  47,  The  Archbishop  of  Canterbury's  case ;  Hob.  298. 

Great  doubt  was  formerly  entertained  whether  a  perpetual  unity  of 
possession  of  land  and  the  rectory  of  the  same  parish  is  primd  facie  a 
discharge  of  the  tithes  of  the  land,  within  the  meaning  of  the  discharg- 
ing clause  in  the  31  H.  8,  c.  13. 

11  Rep.  13,  14,  Priddle  v.  Napper;  2  Rep.  48;  Hob.  298,  311;  Cro.  Eliz.  578. 

But  it  was  at  length  determined,  that  if  the  land  and  the  rectory  had 
been  in  the  possession  of  the  abbot  and  his  predecessors  for  time  im- 
memorial, and  was  so  at  the  dissolution  of  the  monastery,  and  it  do  not 
appear  that  tithes  had  ever  been  paid  for  the  same,  such  land  is  primd 
facie  discharged  of  tithes  by  the  31  H.  8,  c.  13.  The  reason  given  for 
this  determination  is,  that,  as  it  would  be  very  difficult,  if  not  impossi- 
ble, to  show  at  so  great  a  distance  of  time  in  what  manner  the  land  was 
at  first  discharged'of  tithes,  it  shall  be  intended,  that  it  was  discharged 
by  grant,  in  which  case  the  discharge  runs  with  the  land. 

2  Rep.  48,  The  Archbishop  of  Canterbury's  case ;  11  Rep.  13, 14  ;  Hob.  298,  311 ; 
Cro.  Eiiz.  578;  ||G\vill.  859,  1354.|| 

If  it  appear,  however,  that  a  farmer  of  the  land  had  at  any  time  before 
the  dissolution  of  the  monastery  paid  tithes  for  the  same,  this  destroys 
the  presumption  arising  from  the  perpetual  unity  of  possession ;  and  is 
evidence  that,  although  the  payment  of  tithes  was  suspended  by  reason 
of  the  unity  of  possession,  the  land  was  not  discharged  thereof  by  grant- 
Hob.  298;  Slade  v.  Drake,  2  Rep.  48;  11  Rep.  14;  Hob.  311;  Cro.  Ja.  454 ; 
Comb.  511. 

It  has  already  been  observed,  that  lands,  heretofore  discharged  by 
order  of  the  payment  of  tithes  quamdiu  propriis  manibus  excoluntur, 
which  were  vested  in  the  crown  by  the  27  H.  8,  c.  28,  are  not  discharged 
of  the  payment  of  tithes  by  the  31  H.  8,  c.  13. 

Ante. 

It  is  sufficient  in  this  place  to  say,  that  land  which  was  vested  in  the 
crown  by  the  former  of  these  statutes,  is  not  by  the  latter  absolutely  dis- 
charged of  the  payment  of  tithes ;  notwithstanding  there  had  been  a  per- 
petual unity  of  possession  of  the  land  and  the  rectory  of  the  same  parish 
in  the  abbot  and  his  predecessors. 

It  has  been  determined  in  two  cases,  that  land  which  was  vested  in  the 
crown  by  the  32  H.  8,  c.  24,  is  not  discharged  of  tithes  by  the  31  II.  8, 
c.  13,  although  there  had  been,  before  the  dissolution  of  the  monastery  to 
which  the  land  belonged,  a  perpetual  unity  of  possession  of  the  land  and 
:  the  rectory  of  the  same  parish  in  the  abbot  and  his  predecessors ;  and  it 
do  not  appear  that  any  tithes  have  ever  been  paid  for  the  same. 

2  Rep.  4G ;  Cro.  Ja.  58. 


72  TYTHES. 

(Y)  Of  Agreements  and  Leases  concerning  Tithes. 

As  the  reasons  upon  which  these  determinations  were  founded  have 
been  already  mentioned,  it  is  not  necessary  to  repeat  them. 
||Seea/itt,  p.  68,  69.  || 

But,  as  has  already  been  observed,  the  determinations  in  two  subsequent 
cases  have  been,  that  the  discharging  clause  of  the  31  H.  8,  c.  31,  does 
extend  to  lands  which  were  vested  in  the  crown  by  the  32  If.  8,  c.  24. 

It  has  been  holden,  that,  although  there  had  been  a  perpetual  unity  of 
possession  of  land  and  the  rectory  of  the  same  parish  in  a  dean  and  chapter, 
and  their  predecessors,  or  in  any  other  corporation  which  was  not  religious, 
as  well  as  ecclesiastical,  and  it  do  not  appear  that  any  tithes  have  ever 
been  paid  for  the  land,  it  is  not  absolutely  discharged  of  tithes  by  the  31 
H.  8,  c.  13 ;  for  that,  whenever  the  houses  dissolved,  or  to  be  dissolved, 
are  mentioned  in  that  statute,  they  are  always  called  religious  and  eccle- 
siastical houses.  The  discharging  clause  in  the  twenty-first  paragraph 
of  that  statute  does  indeed  say,  that  the  lands  of  the  houses  dissolved, 
and  to  be  dissolved,  shall  be  holden  and  enjoyed  "  discharged  of  the  pay- 
ment of  tithes,  as  freely  and  in  as  ample  a  manner  as  the  late  abbots, 
priors,  abbesses,  and  other  ecclesiastical  governors  and  governesses,  or 
any  of  them,  had,  held,  occupied,  possessed,  or  enjoyed  the  same,  or  any 
parcel  thereof;"  but  the  construction  has  been,  that  as  no  houses,  except 
such  as  were  religious  as  well  as  ecclesiastical,  had  been  dissolved,  these 
words,  ecclesiastical  governors,  only  mean  governors  of  houses  which 
were  religious  as  well  as  ecclesiastical. 

2  Rep.  48,  49,  The  Archbishop  of  Canterbury's  case;  Cro.  Eliz.  511. 

||  Where  lands  exempted  from  tithes,  as  being  part  of  the  demesne  of 
an  ancient  monastery,  were  enclosed  by  act  of  parliament,  it  was  held, 
that  they  were  not  rendered  liable  to  tithes  by  a  clause  in  the  act,  pro- 
viding that  the  rector  or  impropriator  of  the  parish,  or  his  lessee,  should 
receive  all  kinds  of  tithes  from  the  new  enclosures,  notwithstanding  any 
modus,  or  pretence  of  a  modus,  or  composition  in  any  other  parts  of  the 
parish,  or  any  exemption  whatever  ;  since  such  general  words  could  not 
operate  to  destroy  a  clear  legal  exemption,  when  the  whole  scope  of  the 
clauses  was  merely  to  preserve  such  right  as  the  impropriator  had  at  the 
passing  of  the  act. 

Pratt  v.  Hopkins,  3  Bro.  P.  C.  521 ;  see  Gwill.  1387.  || 

[A  lease  of  tithes  for  so  long  time  as  the  lessor  shall  continue  vicar  of 
A,  is  good,  and  conveys  a  freehold.  But  an  agreement  to  accept  a  rea- 
sonable composition  for  tithes,  not  exceeding  three  shillings  and  sixpence 
per  acre,  is  not  a  lease  of  the  tithes,  for  the  uncertainty  of  the  render. 

Brewer  v.  Hill,  Anstr.  414.] 

(Y)  Of  Agreements  and  Leases  concerning  Tithes. 

It  seems  to  be  settled,  that  if  a  parol  agreement  be  made  for  tithes, 
by  way  of  sale  thereof  for  a  term  of  years,  or  for  the  life  of  the  parson, 
in  case  he  so  long  continue  to  be  parson,  the  agreement  is  binding. 

Bro.  amir.  pi.  L3;  Yelv.  94;  1  Browul.  98;  Palm.  377  ;  Gtodb.  354;  8  Mod.  62. 

But  the  law  does  not  seem  to  be  settled  as  to  the  validity  of  a  parol 
agreement  for  tithes,  by  way  of  retainer  thereof. 

It  is  laid  down  in  some  books,  that  a  parol  agreement  for  tithes,  by 
way  of  retainer  thereof,  for  a  term  of  years,  is  good. 

Yelv.  95;  Noy,  121;  2  Browul.  11  ;  3  Leon.  247;  Hctl.  128. 


TYTHES.  73 

(Y)  Of  Agreements  and  Leases  concerning  Tithes. 

In  other  books  it  is  laid  down,  that  if  a  parol  agreement  be  made  for 
the  retaining  of  tithes  during  the  life  of  the  parson,  in  case  he  so  long 
continue  to  be  parson,  the  agreement  is  good. 

Cro.  Ja.  669,  Honeycomb  v.  Sweet,  1  Lev.  24. 

But  it  seems  to  be  the  better  opinion,  that  such  an  agreement,  either 
for  years,  or  during  the  life  of  the  parson,  in  case  he  so  long  continue  to 
be  parson,  is  not  good. 

It  is  in  divers  books  laid  down,  that  such  an  agreement  is  not  good  for 

more  than  one  year  ;  because  it  is  in  the  nature  of  a  lease  of  tithes,  which 

is  not  good  unless  it  be  by  deed. 

Nov,  28;  1  Brownl.  98  ;  Owen,  103;  1  Roll.  R.  174;  Godb.  354;  Cro.  Eliz.  249; 
Cro.  Ja.  137,  3G0  ;  Hard.  203. 

And  in  one  of  these  it  is  said  expressly,  that  such  an  agreement  is  only 
good,  even  for  one  year,  because  it  is  quasi  a  sale  of  the  tithes. 
Cro.  Ja.  137,  Hawkes  v.  Bray  field. 

And  in  a  modern  case,  two  out  of  three  of  the  barons  of  the  Exchequer 
were  of  opinion,  that  a  parol  agreement,  by  way  of  retainer  of  tithes, 
can  only  be  good  for  one  year. 

Bunb.  2,  Keddington  v.  Bridgman,  Ilil.  2  G.  1. 

||  It  is  perfectly  settled,  that  parol  compositions  for  the  land-owner  to 

retain  his  tithes,  and  in  lieu  thereof  to  pay  a  sum  certain  to  the  parson, 

are  good  as  personal  contracts  without  deed  or  writing ;  for  they  do  not 

pass  an  interest  in  the  tithes,  which  can  only  be  done  by  deed. 

Wyburn  v.  Tuck,  1  Bos.  &  Pul.  458  ;  Gwill.  1517  ;  Manby  v.  Taylor,  9  Price,  249  ; 
Brooksby  v.  Watts,  6  Taunt.  334 ;  Gwill.  1743  ;  Adams  v.  Waller,  Gwill.  1204 ; 
7  Bro.  P.  Ca.  65. 

Such  parol  compositions,  being  mere  personal  contracts,  cease  on  a 
change  of  occupation  of  the  land,  and  cannot  operate  to  discharge  a  new 
occupier  from  setting  out  the  tithe.  In  such  case,  the  amount  of  the  for- 
mer composition  is  prima  facie  evidence  of  the  value  of  the  tithes. 

Bennett  v.  Snell,  Palm.  377  ;  1  Eag.  &  Y.  327  ;  Peyton  v.  Kirkly,  3  Chitty,  405  ; 
Gwill.  1988 ;  3  Eag.  &  Y.  1391 ;  sed  vide  Huline  v.  Pardoe,  M'Clel.  393;  3  Eag.  & 
Y.  1164. 

And  such  compositions  are  determined  by  the  death  or  change  of  the 

incumbent ;  since  the  incumbent  cannot,  by  any  such  agreement,  bind 

his  successor. 

Brown  v.  Barlow,  Gwill.  1001 ;  2  Eag.  &  Y.  19;  Hawkins  v.  Kelly,  8  Yes.  308; 
Williams  v.  Powell,  10  East,  270;  Aynsley  v.  Wordsworth,  2  Yes.  &  B.  331. 

But  if  the  successor  accept  the  composition,  this  amounts  to  a  revival 

of  the  agreement,  and  he  cannot  then  determine  it  without  the  proper 

notice. 
Machin  v.  Moulton,  2  Lutw.  1057;    Lloyd  v.  Mortimer,  7  Bro.  P.  C.  493 ;  Gwill. 

1060.|| 

If  a  parson,  who  has  made  a  parol  agreement,  by  way  of  retainer  of 
tithes,  for  a  term  of  years,  or  for  the  term  of  his  life,  in  case  he  so  long 
continue  to  be  parson,  afterwards  bring  an  action  upon  the  statute  for 
subtraction  of  tithes,  without  having  first  given  notice  of  his  dissent  to 
the  agreement,  the  parishioner,  although  the  agreement  be  not  binding, 
shall  not  be  liable  to  the  penalties  of  the  statute,  nor  to  costs. 

Hardr.  203,  Bramer  v.  Thornton. 

Vol.  X.— 10  G 


74  TYTHES. 

(Y)  Of  Agreements  and  Leases  concerning  Tithes. 

||  Nor  is  the  parishioner,  in  such  case,  liable  to  a  proceeding  in  the 
ecclesiastical  court,  or  to  a  suit  in  equity  for  tithes. 

Chapman  v.  Hurst,  1  Leon.  151 ;  1  Lag.  &  Y.  98  :  Adams  v.  Waller,  7  Bro.  P.  Ca. 
C5  ;  Gwill.  1204 ;  Hilton  v.  Heath,  Gwill.  845  ;  2  Eag.  &  Y.  128 ;  Bennett  v.  Snell, 
Palm.  377;  1  Eag.  &  Y.  327.  || 

And  notice  of  his  dissent  is  not  good,  unless  it  be  given  before  the  land, 
of  which  he  means  to  take  tithes  in  kind,  is  manured  and  sown  ;  because, 
perhaps,  the  land  would  not,  if  an  earlier  notice  had  been  given,  have 
been  manured  and  sown. 

Hardr.  203,  Bramer  v.  Thornton. 

||  It  is  now  settled,  that  the  notice  for  the  determination  of  a  composition  | 
for  tithes  is  analogous  to  the  notice  from  the  landlord  to  a  tenant  from 
year  to  year  of  land  ;  that  is,  it  is  necessary  to  give  half  a  year's  notice, 
expiring  with  the  year  of  the  agreement  for  composition.  And,  therefore, 
if  a  composition  be  made  with  A,  as  proprietor  of  the  tithes,  and  he  grants 
a  lease  of  them  to  B  for  a  term,  whose  interest  is  afterwards  determined 
before  any  alteration  is  made  in  the  composition,  A  cannot  determine  the 
composition  without  six  months'  notice  to  the  occupier. 

Hewitt  v.  Adams,  Dom.  Proc,  12  East,  81,  n. ;  Wyburn  v.  Tuck,  1  Bos.  &  P.  458  ; 
Bishop  v.  Chichester,  3  Bro.  C.  R.  162. 

The  notice  must  be  to  determine  the  composition  in  toto ;  for  it  cannot 
be  determined  as  to  part,  and  continue  as  to  the  residue. 
See  3  Taunt.  95  ;  Gwill.  012. 

And  the  notice  must  be  so  unequivocal  that  the  party  may  know  on 
what  he  is  to  depend :  therefore,  a  mere  demand  by  the  vicar,  in  con- 
versation, of  his  vicarial  tithes,  and  a  refusal  to  take  the  amount  of  the 
annual  composition  which  was  tendered  by  the  occupier,  without  assign- 
ing any  reason  for  the  refusal,  is  not  a  sufficient  notice  to  determine  the 
composition. 

Fell  v.  Wilson,  12  East,  83. 

Where  a  house,  lands,  and  tithes  were  held  by  parol  at  a  joint  rent,  it 
was  held,  that  a  notice  to  quit  the  house,  lands,  and  premises,  with  the 
appurtenance,  sufficiently  included  the  tithes. 

Hoc  v.  Church,  3  Camp.  71;  2  Eag.  &  Y.  G49 ;  and  see  16  East,  53. 

The  question  has  been  agitated  in  several  cases,  Whether  such  a  notice 

is  necessary  where  an  occupier  has  set  up  a  claim  of  modus?    In  Hume  v. 

Wright,  the  Court  of  Exchequer  decided  that  in  such  case  a  notice  was 

not  necessary  ;  because,  by  insisting  on  a  modus,  the  parishioner  was 

setting  up  an  adverse  title.     The  decision  of  the  Court  of  Exchequer,  in 

Adams  v.  Waller,  confirmed  this  doctrine  :  but  the  decree  in  this  last  case 

being  reversed  in  Dom.  Proc,  (though  without  any  discussion  on  this 

point,)  Lord  Thurlow,  in  the  case  of  Bishop  v.  Chichester,  considered  the 

•  of  11  nine  v.  Wright  as  overruled ;  and  therefore,  contrary  to  his  own 

opinion  against  the  necessity  of  a  notice  in  such  case,  considered  himself 

bound  by  t  lie  authority  of  the  Dom.  Proc,  in  Adams  v.  Waller,  to  decide 

that  a  parishioner  was  entitled  to  such  a  notice,  notwithstanding  that  he 

denied  the  parson's  right  to  tithes  by  setting  up  a  modus.    The  question 

was  again  discussed  in  Atkins  v.  Willoughby ;  but  the  case  was  decided 

on  another  point.     In  the  case  of  Fell  v.  AVilson,  Chambre,  J.,  at  the  trial 

V  a    of  opinion  that  no  such  notice  was  necessary  where  the  defendant  set 

up  a  modus,  since  the  case  was  analogous  to  that  of  a  tenant  from  year  to 


TYTHES.  75 

(Y)  Of  Agreements  and  Leases  concerning  Tithes. 

year  disclaiming  to  hold  of  his  landlord  ;  and  the  court  afterwards,  on  a 
motion  for  a  nonsuit,  appear  clearly  to  have  been  of  the  same  opinion : 
but  as  there  was  no  distinct  evidence  of  a  modus  being  set  up  till  the 
trial,  the  court  decided  that  the  defendant  was  entitled  to  object  to  the 
want  of  notice.  In  a  late  case  in  the  Common  Pleas,  (Bower  v.  Major,) 
in  which  it  appeared  that  the  parishioner  had  for  two  years  refused  to 
set  out  tithe  of  hay,  on  the  ground  of  a  modus,  the  court  held  the  case 
analogous  to  that  of  a  tenant  disclaiming  his  landlord's  title,  and  that  no 
notice  was  therefore  necessary. 

3  Wood,  320 ;  Gwill.  1217  ;  Gwill.  1204 ;  2  Bro.  C.  C.  1G1 ;  Anstr.  397 :  12  East, 
83  ;  1  Bro.  &  B.  4 ;  ||3  Moo.  217  ;  3  Eag.  &  Y.  956  ;  and  see  Wolley  v.  Brownhill, 
M'Clel.  317  ;  but  see  Wolley  v.  Hadfield,  3  Price,  210;  Gwill.  1790;  and  see  2  Eag. 
on  Tithes,  31,  32.  || 

(As  to  the  apportionment  of  money  received  on  compositions,  as  between 
the  executors  of  a  deceased  incumbent  and  his  successor,  see  tit.  "  Rent," 
Vol.  viii.,  and  10  East,  R.  2G9 ;  8  Ves.  R.  308 ;  2  Ves.  &  B.  331.)|| 

If  a  parol  agreement  by  way  of  retainer  of  tithes,  be  made  by  a  par- 
son, and  he  refuse  to  abide  thereby,  the  parishioner,  although  the  agree- 
ment be  not  binding  as  to  the  tithes,  may  maintain  an  action  against  the 
parson  for  non-performance  of  the  agreement. 
2  Leon.  73,  Wellock's  case  ;  Cro.  Eliz.  249  ;  Godb.  273  ;  ||1  Eag.  &  Y.  89. || 

But  if  a  parol  agreement  for  years  be  made  with  A,  that  he  and  his 
assigns  shall  retain  the  tithes  of  certain  land,  and  the  land  be  afterwards 
assigned  over  to  B,  B  cannot  maintain  an  action  for  non-performance  of 
the  agreement,  inasmuch  as  the  benefit  of  a  parol  agreement  cannot  be 
assigned. 

Cro.  Eliz.  240,  Nelson  v.  Woodward. 

On  the  other  hand,  if  a  parishioner  refuse  to  pay  the  money  due  upon 

a  parol  agreement,  by  way  6f  retainer  of  tithes,  the  parson,  although  the 

agreement  be  not  binding  as  to  the  tithes,  may  maintain  an  action  for 

the  money  agreed  for. 

2  Show.  307,  Eaton  v.  Shenvin;  ||Brooksby  v.  Watts,  6  Taunt.  334;  Hulme  v. 
Pardoe,  M'Clel.  393  ;  3  Eag.  &  Y.  1104. || 

It  is  laid  down  in  some  cases,  that  a  lease  of  tithes  by  parol  is  not 
good ;  because  tithes,  which  lie  in  grant,  cannot  pass  without  deed. 
Latch,  176  ;  Bellamy  v.  Balthorp,  2  Brownl.  11. 

In  other  cases  it  is  laid  down,  that  a  lease  by  parol  of  tithes  is  good 

for  one  year,  because  the  lease  enures  quasi  a  sale  of  the  tithes. (a) 

Cro.  Eliz.  249  ;  Godb.  354,  374 ;  Freem.  234.  ||(«)But  a  parol  lease  of  tithe.?,  not 
yet  severed  from  the  nine  parts,  cannot  operate  as  a  sale  ;  for  the  parson  has  no  pos- 
sessory interest  capable  of  being  sold  until  the  tithes  are  severed.  See  Bex  v.  Ellis, 
3  Price,  323 ;  3  Eag.  &  Y.  776 ;  Chase  v.  Calmel,  3  Burr.  1873 ;  Wyburd  v.  Tuck, 
lBos.  &Pul.  458;  Gwill.  1517.  || 

But  the  doctrine  of  the  former  cases  is  adhered  to  in  two  modern 
cases. 

In  one  of  these  it  was  holden,  that  a  lease  by  parol  of  tithes,  even  for 
one  year,  is  not  good. 

Bunb.  2,  Keddington  v.  Bridgman,  Hil.  2  G.  1. 

In  the  other  it  is  laid  down,  that  tithes  which  lie  in  grant  cannot  pass 
without  deed. 

8  Mod.  63,  The  King  v.  Fairclough,  Mich.  8  G.  1.  ||See  Paynton  v.  Kirkby,  3  Chitt. 
405  ;  3  Eag.  &  Y.  1391 ;  Adams  v.  Waller,  Gwill.  1220 ;  Jackson  v.  Benson,'!  M'Clel. 


76  TYTHES. 

(Z)  Of  Suits  for  Tithes  in  the  Spiritual  Court. 

62  ;  Gwill.  2074  ;  from  which,  and  various  other  cases,  it  is  clear,  that  no  interest  in 
tithes  can  be  granted  without  deed,  unless,  indeed,  where  they  pass  as  parcel  of  a  rec- 
tory, which  being  considered  a  corporeal  hereditament,  may  be  demised  for  three  years 
without  deed.  Bro.  Ab.  tit.  Lease,  1,  15,  20  :  2  R.  A.  G3 ;  Bellamy  v.  Balthorpe,  God- 
bolt,  373  :  Latch,  17G  ;  1  Eag.  &  Y.  355  ;  Brewer  v.  Hill,  2  Anstr.  413  ;  Gwill.  1418  ; 
2Eag.  &  Y.  412.|| 

A  lease  of  tithes,  to  commence  at  a  future  day,  is  void ;  for,  although 
the  tithes  arc  not  parcel  of,  but  collateral  to,  the  land,  the  same  rules  are 
to  be  observed  in  leases  of  tithes  as  in  leases  of  land. 

Yelv.  131,  Edmonds  v.  Booth. 

(Z)  Of  a  Suit  in  a  Spiritual  Court  for  Subtraction  of  Tithe. 

At  the  common  law  there  was  no  other  remedy  against  a  person  who 
had  neglected  to  set  out  or  pay  his  tithe,  than  by  suit  in  a  spiritual  court. 
Bro.  Dism.  pi.  1,  pi.  5,  pi.  0,  pi.  10  ;  2  Rep.  44;  Vaugh.  195. 

If  tithe,  which  had  been  severed  by  a  proper  person  from  the  nine 
parts,  were  afterwards  carried  away  by  a  stranger,  the  parishioner  was 
not  answerable  for  it ;  but  the  remedy  against  the  person  carrying  it 
away  was  by  an  action  in  a  temporal  court ;  for,  by  the  severance,  it 
was  vested  in  the  parson,  and  become  lay  chattel. 

Bro.  Dism.;  Noy,  4;  2  Bulstr.  184;  Cro.  Eliz.  G07. 

But  if  the  severance  of  the  tithe  were  by  a  stranger,  who  had  no 
colour  of  title  to  the  land  upon  which  it  arose,  this  did  not  take  away  the 
right  of  the  parson  to  sue  the  parishioner  in  a  spiritual  court  for  subtraction 
of  tithe  ;  because  there  was  not  such  a  property  in  the  tithe  vested  in  the 
parson  by  this  severance,  as  would  have  enabled  him  to  maintain  an 
action  at  law  against  the  person  who  should  afterwards  carry  it  away. 

3  Bulstr.  337,  Mountford  v.  Sidley;  Latch,  8. 

By  the  32  H.  8,  c.  7,  §  2,  it  is  enacted,  "  That  in  case  any  person 
shall  detain  and  withhold  any  tithe,  the  party  having  cause  to  demand 
or  have  the  same  may  sue  for  the  same  in  a  spiritual  court." 

The  construction  of  this  clause  has  been,  that  if  the  person  who  has 
legally  set  out  tithe  afterwards  carry  it  away,  the  party  to  whom  the  tithe 
was  due  may  sue  for  it  in  a  spiritual  as  well  as  in  a  temporal  court ;  for 
that  the  words  detain  and  withhold  fairly  extend  to  a  carrying  away  of 
tithe  after  it  has  been  set  out. 
Cro.  Eliz.  007,  Leigh  v.  AVood. 

But  it  was  in  the  same  case  holdcn,  that  this  clause  does  not  give 
jurisdiction  to  any  spiritual  court,  where  tithe,  which  has  been  legally 
set  out  by  a  proper  person,  is  afterwards  carried  away  by  a  stranger. 
Cro.  Eliz.  007,  Leigh  v.  Wood. 

If  any  doubt  did  remain,  as  to  the  carrying  away  of  tithes  by  the  person 
who  had  legally  set  it  out,  this  is,  as  to  predial  tithes,  entirely  removed  by 
the  2  &  :\  Ed.  6,  c.  13,  §  2,  it  being  thereby  enacted,  "  That  if  any  person 
do  willingly  withdraw  his  tithe  of  corn  or  hay,  or  of  such  other  things 
whereof  predial  tithes  ought  to  be  paid,  by  reason  whereof  the  said  tithe  is 
lost,  impaired,  or  hurt ;  that  then,  upon  due  proof  thereof  made  before  the 
spiritual  judge,  or  any  other  judge  to  whom  heretofore  he  might  have 
made  complaint,  the  party  so  withdrawing  shall  pay  the  double  value  of 
the  tithe  so  withdrawn,  over  and  above  the  costs,  charges,  and  expenses 


TYTHES.  77 

(Z)  Of  Suits  for  Tithes  in  the  Spiritual  Court. 

of  the  suit;  the  same  to  be  recovered  before  the  ecclesiastical  judge,  ac- 
cording to  the  king's  ecclesiastical  laws." 

The  construction  of  this  clause  has  been,  that  if  a  stranger  carry  away 
the  tithe,  after  it  has  been  legally  severed  from  the  nine  parts,  an  action 
upon  the  statute  does  not  lie  against  the  stranger. 

Noy,  44,  Webb  v.  Potts. 

Only  spiritual  persons  could,  at  the  common  law,  sue  in  a  spiritual 
court  for  subtraction  of  tithe. 

Bro.  Dism.  pi.  9  ;  2  lust.  G4S ;  2  Rep.  44  ;  Cro.  Eliz.  512. 

But  as  laymen,  soon  after  the  dissolution  of  monasteries,  became  pos- 
sessed of  estates  in  tithes,  it  was  necessary  that  they  should  be  enabled 
to  sue  for  subtraction  thereof. 

For  the  sake  of  enabling  them  to  do  this,  it  is  by  the  32  H.  8,  c.  7, 
§  2,  enacted,  "  That  in  case  any  person  shall  detain  and  withhold  any 
tithe,  the  party  being  ecclesiastical  or  lay  person,  having  cause  to  demand 
or  have  the  said  tithe,  shall  and  may  convene  the  person  so  offending 
before  the  ordinary,  his  commissary,  or  other  competent  minister  or  law- 
ful judge,  of  the  place  where  such  wrong  shall  be  done,  according  to  the 
ecclesiastical  laws ;  and  in  every  such  cause  or  matter  of  suit  the  same 
ordinary,  commissary,  or  other  competent  minister  or  lawful  judge,  shall 
and  may,  by  virtue  of  this  act,  proceed  to  the  examination,  hearing,  and 
determination  of  every  such  cause  or  matter,  according  to  the  course  and 
process  of  the  ecclesiastical  laws ;  and  thereupon  may  give  sentence  ac- 
cordingly." 

It  was  heretofore  usual  to  cite  persons  from  all  parts  of  England  to 
answer  for  subtraction  of  tithe  in  the  prerogative  courts  of  Canterbury 
and  York. 

12  Mod.  252,  Machin  v.  Malton. 

In  order  to  put  a  stop  to  this  great  vexation,  it  is,  by  the  23  II.  8,  c. 
9,  §  2,  enacted,  "  That  no  person  shall  be  from  henceforth  cited,  sum- 
moned, or  otherwise  called,  to  appear  before  any  ordinary,  or  other  spi- 
ritual judge,  out  of  the  diocese  or  peculiar  jurisdiction  wherein  the  person, 
who  shall  be  cited,  summoned,  or  otherwise  called,  shall  be  inhabiting, 
at  the  time  of  the  awarding  or  going  forth  of  the  same  citation  or  sum- 
mons," except  in  certain  cases  mentioned  in  this  statute,  of  which  sub- 
traction of  tithes  is  not  one. 

It  is  moreover  enacted,  by  the  32  H.  8,  c.  7,  §2,  "  That  every  suit  for 
subtraction  of  tithe  shall  be  brought  in  the  court  of  the  ordinary,  com- 
missary, or  other  competent  minister  or  lawful  judge,  of  the  place  where 
the  wrong  shall  be  done." 

It  has  been  holden,  that  the  direction  of  the  latter  statute  is  to  be  fol- 
lowed, as  to  the  spiritual  court  in  which  a  suit  for  subtraction  of  tithe  is 
to  be  instituted. 

A  person  who  lived  in  the  diocese  of  A  had  subtracted  tithe  in  the  dio- 
cese of  B.     Being  cited  to  answer  for  this  in  the  court  of  the  bishop  of 
B,  a  prohibition  was  moved  for ;  and  it  was  insisted,  that  by  virtue  of 
i  the  23  H.  8,  c.  9,  every  citation  for  subtraction  of  tithe  must  be  to  a 
I  court  belonging  to  the  jurisdiction  in  which  the  person  cited  lives.     The 
|  court  being  doubtful,  a  prohibition  was,  for  the  sake  of  having  the  point 
\  settled,  granted ;  but  afterwards  the  whole  court  were,  upon  deliberation, 
of  opinion  that  a  consultation  ought  to  be  awarded. 
2  Mod.  352,  Machin  v.  Malton. 


78  TYTHES. 

(Z)  Of  Suits  for  Tithes  in  the  Spiritual  Court. 

At  the  common  law  only  the  tithe,  or  the  value  thereof,  with  costs  of 
the  suit,  could  be  recovered  in  a  suit  for  subtraction  of  tithe. 
2  Inst.  651. 

But  a  better  remedy  is  given  by  the  2  &  3  Ed.  6,  c.  13,  §  2,  in  the 
case  of  predial  tithes,  (one  clause  of  which  is  above  set  out :)  it  being 
thereby  enacted,  "  That  if  any  person  do  carry  away  his  corn,  hay,  or  other 
things  of  which  predial  tithes  are  due,  before  the  tithe  thereof  be  set  forth; 
or  do  willingly  withdraw  any  of  his  said  predial  tithes ;  or  do  stop  (a)  or 
let  the  parson,  vicar,  proprietor,  owner,  or  other  their  deputies  or  farmers, 
to  view  and  see  all  manner  of  their  predial  tithes  to  be  justly  and  truly 
set  forth,  and  severed  from  the  nine  parts,  and  the  same  quietly  to  take 
and  carry  away,  by  reason  whereof  the  said  tithe  is  lost,  impaired,  or  hurt ; 
that  then  the  party  so  carrying  away,  withdrawing,  stopping,  or  letting, 
shall  pay  the  double  value  of  the  tithe  so  taken,  lost,  withdrawn,  or  car- 
ried away,  over  and  above  the  costs,  charges  and  expenses  of  the  suit ; 
the  same  to  be  recovered  according  to  the  king's  ecclesiastical  laws." 

||(a)  As  to  what  road  may  be  used  by  a  parson  for  fetching  away  his  tithes,  see 
Cobb  v.  Selby,  2  New  R.  466.|| 

It  is  laid  down,  that  the  double  value,  which  may  be  recovered  under 
this  statute  in  a  spiritual  court,  is  to  be  over  and  above  the  value  of  the 
tithe ;  and,  consequently,  that  a  suit  in  a  spiritual  court  for  subtraction 
of  predial  tithe  is  more  advantageous  than  an  action  upon  the  statute  in 
a  temporal  court  for  the  treble  value ;  inasmuch  as  the  treble  value  of 
the  tithes  may  be  recovered  in  the  spiritual  court,  together  with  the  costs 
of  the  suit. (b) 

2  Inst.  651.  H(6)  By  the  8  &  9  Will.  &  M.  c.  11.  the  plaintiff  is  entitled  to  costs  in 
a  temporal  court,  where  the  value  of  the  tithes  does  not  exceed  the  sum  of  twenty 
nobles,  (0/.  13s.4J.)|| 

But  it  seems  to  be  the  better  opinion,  that  only  the  double  value  of 
the  tithe  and  the  costs  of  the  suit  can  be  recovered,  in  a  suit  in  a  spiritual 
court  for  subtraction  of  a  predial  tithe. 

In  a  suit  in  a  spiritual  court  for  subtraction  of  tithe,  the  sentence  was, 
that  the  plaintiff,  besides  the  double  value  of  the  tithe  and  the  costs  of 
the  suit,  should  also  recover  the  single  value  thereof.  A  prohibition  was 
awarded.  And  by  the  court — The  spiritual  court  is  not  empowered  by 
the  2  &  3  Ed.  G,  c.  13,  to  give  more  than  the  double  value  of  the  tithe 
and  the  costs  of  the  suit,  in  a  suit  for  subtraction  of  tithe. 

Godb.  245,  Baldwin  v.  Gecry. 

If  the  defendant  die,  pending  a  suit  upon  the  2  Ed.  G,  c.  13,  in  a  spi- 
ritual court  for  subtraction  of  tithe,  and  afterwards  another  suit  be  com- 
menced against  his  executor,  a  prohibition  lies  ;  for  the  double  value, 
given  by  that  statute,  is  given  by  way  of  punishment  for  the  personal 
wrong  in  subtracting  the  tithe ;  and  an  executor  is  not  answerable  for  a 
personal  wrong  done  by  his  testator. 

Sid.  181,  Wcekes  v.  Trussel. 

It  is  in  general  true,  that  there  is  no  method  of  enforcing  obedience 
to  a  sentence  of  a  spiritual  court  by  fine,  imprisonment,  or  amercement. 

1  Inst.  324;  11  Rep.  44. 

But  by  the  32  II.  8,  c.  7,  §4,  it  is  enacted,  "That  if  any  person,  after 
a  definitive  sentence  given  against  him  in  an  ecclesiastical  court  for  sub- 
traction of  tithe,  obstinately  and  wilfully  refuse  to  pay  his  tithe,  or  such 


TYTHES.  79 

(Aa)  Of  prohibitions  to  Suits  in  the  Spiritual  Court. 

sums  of  money  wherein  he  shall  be  condemned  for  the  same,  that  then 
two  justices  of  the  peace  shall  have  authority  by  this  act,  upon  informa- 
tion, certificate  or  complaint  to  them  made  in  writing,  by  the  ecclesiasti- 
cal court  that  gave  the  same  sentence,  to  cause  the  party  so  refusing  to 
be  committed  to  the  next  jail,  and  there  to  remain  without  bail  or  main- 
prise, until  he  shall  have  found  sufficient  sureties,  to  be  bound  in  recogni- 
sance or  otherwise  before  the  same  justices,  to  the  use  of  our  sovereign 
lord  the  king,  to  perform  the  said  sentence." 

||  In  a  modern  case  in  the  Consistory  Court  of  London,  the  question  was 
discussed,  Whether  a  bankrupt's  certificate  was  a  bar  to  a  demand  for 
subtraction  of  tithes  in  the  ecclesiastical  court,  the  tithes  having  become 
clue  before  the  act  of  bankruptcy,  and  the  certificate  having  been  obtained 
a  few  days  before  the  affirmative  issue  had  been  given  to  the  libel  ?  Sir 
"William  Scott,  not  being  satisfied  that  the  demand  was  not  barred,  de- 
clined to  decree  excommunication  against  the  defendant. 

Braithwaite  v.  Hollingshead,  1  Haggard,  11.  470.  || 

(Aa)  In  -what  Cases  a  Prohibition  lies  to  a  Suit  in  a  Spiritual  Court  for  Subtraction 

of  Tithe. 

Notwithstanding  the  general  jurisdiction  which  spiritual  courts  have 
in  the  matter  of  tithes,  a  prohibition  in  many  cases  lies  to  a  suit  in  a 
spiritual  court  for  subtraction  of  tithe. 

But  it  is  sometimes  difficult  to  determine,  whether  a  prohibition  does 
or  does  not  lie  to  such  suit. 

It  is  a  rule  of  law,  that  questions  concerning  temporal  matters  are 
only  to  be  tried  in  temporal  courts. 

Fitz.  N.  B.  40  ;  2  Inst.  613  ;  Cro.  Eliz.  228  ;  2  Roll.  Abr.  291. 

But  there  is  another  rule  of  law,  that  ubi  cognitio  principalis  est,  ibi 
debet  esse  cognitio  aceessorii. 

A  desire  of  reconciling  these  two  rules  of  law,  together  with  the  diffi- 
culty of  doing  it,  has  been  productive  of  determinations  which  are  not 
easily  to  be  reconciled. 

As  some  of  these  determinations  are  founded  upon  nice  distinctions, 
the  law,  concerning  the  awarding  of  a  prohibition  to  a  suit  in  a  spiritual 
court  for  substraction  of  tithe,  will  be  much  better  collected  from  sub- 
mitting the  principal  cases  to  the  reader's  judgment,  than  from  any 
general  rules  which  can  be  laid  down. 

If  payment  be  pleaded  to  a  libel  in  a  spiritual  court  for  subtraction  of 
tithe,  a  prohibition  does  not  lie  ;  because  the  question,  whether  there  was 
such  payment,  is  such  an  incidental  one  as  may  be  well  tried  in  the 
spiritual  court. 

Cro.  Eliz.  GOG,  Mallory  v.  Mariot. 

If  to  a  libel  in  a  spiritual  court  for  subtraction  of  tithe  of  wood  there 
be  a  plea  of  gross  wood,  a  prohibition  does  not  lie ;  for  the  question, 
whether  the  wood  of  which  the  tithe  is  demanded  be  gross  wood,  may 
be  well  tried  in  the  spiritual  court. 

Ld.  Raym.  835,  Bike  v.  Brown. 

If  the  validity  of  letters  patent,  or  of  a  feoffment  or  release,  come  in 
question  in  a  suit  in  a  spiritual  court  for  subtraction  of  tithe,  a  prohibition 


80  TYTHES. 

(Aa)  Of  Prohibitions  to  Suits  in  the  Spiritual  Court, 
does  not  lie ;  because  the  validity  of  either  of  these  may  be  well  tried 
in  the  spiritual  court. 

Ld.  Raym.  74,  Chamberlain  v.  Hewitson. 

If  a  suit  be  in  a  spiritual  court  for  subtraction  of  tithe  due  by  custom, 
a  prohibition  does  not  lie;  for  tithe  due  by  custom  may  as  well  be  sued 
for  in  a  spiritual  court  as  tithe  which  is  due  of  common  right. 

Hob.  247  ;  Latch,  125  ;  3  Lev.  103  ;  Bunb.  8. 

A  suit  may  be  in  a  spiritual  court  for  that  which  is  to  be  paid  as  a 
modus :  for  as  the  tithe,  in  lieu  of  which  it  is  to  be  paid,  is  so  absolutely 
discharged,  that  the  parson  cannot  resort  to  the  taking  thereof  in  kind, 
the  modus  becomes  a  spiritual  fee,  and,  consequently,  it  is  recoverable 
in  a  spiritual  court. 

Hob.  42,  247  ;  1  Ventr.  274 ;  Bunb.  8. 

Nay,  it  is  said  in  one  case,  that  a  suit  for  that  Avhich  is  to  be  paid  as 
a  modus  can  only  be  instituted  in  a  spiritual  court. 

12  Mod.  41G,  Johnson  v.  Ryson. 

It  was  heretofore  holden,  that  a  prohibition  would  lie  to  a  suit  in  a 
spiritual  court  for  subtraction  of  tithe,  upon  the  bare  suggestion  of  a  cus- 
tomary method  of  tithing,  or  of  a  modus  ;  although  the  customary  method 
of  tithing,  or  the  modus,  had  not  been  pleaded  in  the  spiritual  court. 

2  Hep.  45,  The  Archbishop  of  Canterbury's  case;  Cro.  Eliz.  511. 

It  has  been  since  holden,  that  a  prohibition  does  not  lie  in  such  case, 
unless  the  cause  suggested  for  obtaining  the  prohibition  has  been  pleaded 
in  the  spiritual  court ;  for  that,  as  the  court  has  a  general  jurisdiction  in 
the  matter  of  tithes,  the  modus,  by  which  it  is  to  be  deprived  of  that 
jurisdiction,  must  be  pleaded  specially. 

Lord  Raym.  835  ;  Dike  v.  Brown,  Salk.  655. 

But  if  a  bill  be  filed  in  a  court  of  equity  to  establish  a  modus,  and  it 
appear  that  a  suit  is  instituted  in  a  spiritual  court  for  subtraction  of  the 
tithe,  for  which  the  modus  is  alleged  to  be  a  recompense,  an  injunction 
is  usually  granted ;  although  the  modus  have  not  been  pleaded. 

Bunb.  176,  Blackctt  v.  Finny.  ||  But  see  Rotheram  v.  Fanshaw,  3  Atk.  628 ;  1 
Eden,  R.  276.  || 

If  a  customary  method  of  setting  out  tithe,  or  a  modus,  be  pleaded  to 

a  suit  in  a  spiritual  court  for  subtraction  of  tithe,  a  prohibition  does  not 

lie,  unless  the  spiritual  court  have  refused  to  admit  the  plea,  or  the  truth 

thereof  be  denied. 

Bunb.  17,  Offlcy  v.  Whitehall ;  Hob.  247  ;  1  Ventr.  165,  274  ;  1  Sid.  283 ;  Bunb.  8. 

||  However,  in  a  subsequent  case,  a  prohibition  was  granted  on  a  mere 
affidavit,  that  the  defendant  in  the  spiritual  court  had  answered  on  oath 
or  pleaded  a  modus,  though  it  did  not  appear  that  the  modus  was  regu- 
larly put  in  issue. 

French  v.  Trask,  10  East,  348  ;  and  see  per  Baylcy,  J.,  5  Barn.  &  C.  22,  and  tit. 
Prohibition,  Vol.  viii.  p.  225. || 

But  if  the  customary  method  of  setting  out  tithe,  or  the  modus,  which 
is  pleaded  to  a  suit  in  a  spiritual  court  for  subtraction  of  tithe,  appear 
plainly  to  be  bad,  a  prohibition  docs  not  lie,  although  the  truth  of  the  plea 
be  denied ;  for  it  would  be  quite  nugatory  to  award  a  prohibition  in  order 
to  try  the  existence  of  a  thing,  which,  if  it  do  exist,  is  bad. 

12  Mod.  200  ;  Hill  v.  Vaux,  Salk.  656. 


TYTHES.  SI 

(Aa)  Of  Prohibitions  to  Suits  in  the  Spiritual  Court. 

It  is  in  general  true,  that  if  the  existence  of  a  customary  method  of 

setting  out  tithe,  or  the  validity  of  a  modus,  come  in  question  in  a  suit 

in  a  spiritual  court  for  subtraction  of  tithe,  a  prohibition  lies ;  because 

the  existence  of  the  custom  or  the  validity  of  the  modus  cannot  be  well 

tried  in  such  court.     The  reason  is,  that  in  some  cases  a  usage  of  ten 

years,  in  others  a  usage  of  twenty  years,  in  others  a  usage  of  thirty  years, 

and  in  all  a  usage  of  forty  years,  does,  by  the  ecclesiastical  law,  make  a 

custom ;  whereas  there  cannot  be  a  customary  method  of  setting  out  tithe, 

or  a  valid  modus,  unless  the  tithe  has  time  immcmorially  been  set  out  in  the 

method  prescribed  for,  or  the  modus  has  been  paid  time  immemorially. 

2  Inst.  643  ;  Hob.  247  ;  Latch,  48  ;  Cro.  Ja.  454;  1  Ventr.  274;  2  Lev.  103  ;  Lord 
Raym.  436 ;  Bunb.  8,  17. 

If,  after  a. prohibition  have  been  awarded,  issue  he  taken  upon  the 
existence  of  a  customary  method  of  setting  out  tithe,  or  the  validity  of  a 
modus,  which  has  been  pleaded  in  the  spiritual  court,  and  the  verdict  in 
prohibition  be,  that  there  is  not  such  a  customary  method  of  setting  out 
tithe,  or  such  a  modus,  a  consultation  ought  to  be  awarded,  inasmuch  as 
the  reason  of  tying  up  the  hands  of  the  spiritual  court  does  no  longer  exist. 
Hob.  192,  247  ;  Godb.  245  ;  Cro.  Car.  113  ;  2  Lev.  103 ;  Hardr.  510. 

But  if  the  verdict  in  prohibition  find  the  customary  method  of  setting 
out  tithe,  which  has  been  pleaded  in  the  spiritual  court,  to  be  good  in 
part,  a  consultation  ought  not  to  be  awarded  ;  because,  as  the  custom  is 
in  part  good,  the  suit  ought  not  to  proceed  in  the  spiritual  court. 

Hob.  192,  Berrie's  case. 

If  one  modus  be  suggested  as  a  cause  of  prohibition,  and  a  verdict  in 
prohibition  find  a  different  modus,  a  consultation  ought  not  to  be 
awarded ;  because  the  validity  of  the  modus  which  is  found,  cannot  be 
weH  tried  in  a  spiritual  court. 

Cro.  Eliz.  736  ;  Austin  v.  Pigot,  Hetl.  100. 

If  the  bounds  of  a  parish  come  in  question  in  a  suit  in  a  spiritual 

court  for  subtraction  of  tithe,  a  prohibition  lies. 

2  Roll.  Abr.  282,  E,  pi.  3  ;  1  Ventr.  335  ;  1  Lev.  78 ;  II  Stainbank  v.  Bradshaw, 
10  East,  349  ;  2  Eag.  &  Y.  568. || 

But  it  is  said,  that  although  a  spiritual  court  cannot  try  the  bounds 
of  a  parish,  the  bounds  of  a  vill  in  a  parish  may  be  tried  in  such  court. 

1  Sid.  89  ;  1  Lev.  89. 

And  in  one  case  it  is  laid  down,  that  a  spiritual  court  can  try  the 
bounds  of  a  vill  in  a  parish. 

2  Roll.  Abr.  312,  pi.  7,  Ives  v.  Wright.  ||  See  Reeves  v.  Bould,  1  Keb.  945 ;  1  Ea#. 
&  Y.  447  ;  Butler  v.  Yateman,  1  Keb.  354 ;  1  Eag.  &  Y.  437.  Quccre,  Whether  there 
is  any  sound  distinction  between  the  case  of  a  vill  and  of  a  parish  ?|| 

But  if  the  reason  of  the  determination  in  this  case,  which  is,  that  the 
dispute  was  between  two  spiritual  persons,  be  attended  to,  it  by  no  means 
follows,  that  the  bounds  of  a  vill  in  a  parish  can  in  general  be  tried  in  a 
spiritual  court. 

If  the  right  of  carrying  away  tithe  by  a  particular  way  come  in  ques- 
tion in  a  suit  in  a  spiritual  court  for  subtraction  of  tithe,  a  prohibition 
lies ;  because  a  right  of  way  generally  depends  upon  usage. 

1  Bulstr.  68,  Anon. 

Wherever  a  spiritual  court  tries  a  temporal  matter,  which  is  incidental 
Vol.  X.— 11 


82  TYTHES. 

(Bb)  Of  Suits  in  Equity  for  Tithes. 

to  a  question  concerning  subtraction  of  tithe,  the  temporal  matter  must 
be  tried  according  to  the  rules  of  the  common  law ;  otherwise  a  prohibi- 
tion lies. 

Hob.  188  ;  1  Ventr.  291  ;  2  Lev.  64 ;  Salk.  547  ;  Ld.  Rayra.  74. 

If  a  party,  who  has  pleaded  payment  to  a  suit  in  a  spiritual  court  for 
subtraction  of  tithe,  offer  to  prove  this  by  one  witness,  and  the  proof  be 
not  admitted,  a  prohibition  lies ;  for,  although  two  witnesses  are  necessary 
by  the  ecclesiastical  law  in  every  case,  the  common  law  requires  but  one 
in  this  case. 

Cro.  Eliz.  GG6,  Mallory  v.  Mariot.  ||  See  tit.  Prohibition,  (L),  5,  and  cases  there 
cited.  || 

But,  if  a  spiritual  court  in  such  case  admit  proof  by  one  witness  to  be 
sufficient,  that  court  is  to  judge  by  its  own  rules  of  the  competency  of 
the  person  adduced  as  a  witness. 

Salk.  547,  Shotter  v.  Friend. 

It  is  laid  down  generally  in  some  books,  that  a  prohibition  lies  to  a 
suit  in  a  spiritual  court  for  subtraction  of  tithe  after  sentence. 
Salk.  547  ;  Ld.  Raym.  835. 

In  other  books  it  is  laid  down,  that  although  a  prohibition  does  lie  after 
sentence,  in  a  case  wherein  the  spiritual  court  had  not  jurisdiction  in  the 
principal  matter,  none  lies  to  a  suit  for  the  subtraction  of  tithe  after  sen- 
tence ;  because,  as  the  spiritual  court  had  jurisdiction  in  the  principal 
matter,  the  defect  can  only  have  been  of  jurisdiction  to  try  some  inci- 
dental matter,  in  which  case  a  prohibition  does  not  lie  after  sentence. 

Salk.  548  ;  Bunb.  17. 

||  It  is  now  settled,  that  the  application  for  a  prohibition  to  the  spiritual 
court,  on  the  ground  of  a  modus  being  pleaded,  must  be  made  before 
sentence  ;  since  such  a  prohibition  is  granted  solely  pro  defectu  triationis, 
and  not  pro  defectu  jurisdictionis  ;  in  which  latter  case  only  can  a  pro- 
hibition be  had  after  sentence. 

Full  v.  Hatching,  Cowp.  422 ;  Darby  v.  Cousins,  1  Term  R.  552 ;  Stainbank  v, 
Bradshaw,  10  East,  349. || 

But,  if  the  sentence  of  a  spiritual  court  be  illegal,  a  special  prohibi- 
tion may  be  obtained  to  a  suit  in  a  spiritual  court  for  subtraction  of  tithe 
after  sentence. 

In  a  suit  upon  the  2  E.  G,  c.  13,  for  subtraction  of  a  predial  tithe,  the 
sentence  of  the  spiritual  court  was,  that  the  plaintiff,  besides  the  double 
value  of  the  tithe  and  the  costs  of  the  suit,  should  likewise  recover  the 
single  value  of  the  tithe  by  way  of  damages.  As  a  spiritual  court  is  not 
empowered  by  that  statute  to  give  more  than  the  double  value  of  the 
tithe  and  the  costs  of  the  suit,  the  sentence  was  holden  to  be  illegal ;  ; 
and  a  special  prohibition  was  awarded. 

Godb.  124"),  Baldwin  v.  Geery.  ||  See  Sandford  v.  Porter,  2  Chitt.  R.  351 ;  3  Eag. 
&  Y.  1392.|| 

||  See,  on  the  subject  of  prohibitions,  Vol.  viii.  tit.  " Prohibition. "|| 

(Bb)  Of  a  Suit  in  a  Court  of  Equity  for  Subtraction  of  Tithe. 

The  courts  of  Chancery  and  Exchequer  have  both  jurisdiction  in  the 
case  of  subtraction  of  tithe. 


TYTHES.  83 

(Bb)  Of  Suits  in  Equity  for  Tithes. 

A  bill  in  equity  may  be  filed  for  subtraction  of  tithe,  however  small 
the  value  of  the  tithe  subtracted  is. 

Bunb.  28,  Anon.  ||See  4  Bro.  P.  C.  314;  2  Eag.  &  Y.  52;  Gwill.  73G;  1  Wood, 
441 ;  1  Eag.  &  Y.  660;  Gwill.  549.|| 

If  a  bill  in  equity  be  filed  for  subtraction  of  tithe  belonging  to  a  por- 
tion of  tithes,  or  of  the  tithes  of  a  particular  thing,  every  person  entitled 
to  any  tithe  arising  in  the  parish  in  which  the  tithe  is  claimed  by  the  bill, 
must  be  a  party  thereto ;  because  the  right  of  every  such  person  may  be 
affected  by  the  decree. 

Bunb.  115,  Bailey  v.  Worrallj  Bunb.  263. 

A  sequestrator  cannot  file  a  bill  in  equity  for  subtraction  of  tithe  dur- 
ing the  vacancy  of  the  benefice,  without  making  the  bishop  of  the  diocese 
a  party ;  because  the  sequestrator  is  accountable  to  the  bishop  for  what 
he  receives. 

Bunb.  192,  Jones  v.  Barrett. 

If  a  bill  in  equity  be  filed  by  a  sequestrator,  during  the  insanity  of  an 
incumbent,  for  subtraction  of  tithe,  the  incumbent  or  his  committee  must 
be  a  party  to  the  bill ;  otherwise,  if  the  incumbent  should  recover  his 
senses,  and  file  another  bill  for  the  same  tithe,  a  recovery  by  the  seques- 
trator could  not  be  pleaded  in  bar  to  the  second  bill. 

Bunb.  141,  The  Bishop  of  London  v.  Nicholls. 

If  a  rector  or  impropriator  file  a  bill  in  equity,  for  subtraction  of  tithe 
belonging  to  a  rectory,  it  is  sufficient  to  show  a  title  to  the  rectory ;  the 
right  of  tithe  being  incident  to  the  right  of  rectory. 
Bunb.  225,  Charlton  v.  Charlton. 

But  an  impropriator  must  in  such  a  bill  show  that  either  himself,  or 
the  person  under  whom  he  claims,  has  an  estate  in  fee  in  the  rectory 
Bunb.  115,  Penny  v.  Hooper 

It  is  not,  however,  necessary  for  an  impropriator  to  derive  his  title  in 
such  bill  from  the  original  grant  of  the  rectory  by  the  crown ;  it  being 
sufficient  to  show  that  he  is  seised  thereof  in  fee. 

Bunb.  296,  Leigh  v.  Maudesley. 

||  And  it  has  been  determined  by  the  House  of  Lords,  that  a  lay  impro- 
priator in  possession  of  a  rectory,  and  in  perception  of  the  tithes,  has  a 
sufficient  title  to  sustain  a  suit  against  occupiers  for  an  account  of  tithes, 
although  the  rectory  is  subject  to  mortgages,  and  the  legal  estate  is  in 
trustees. 

Glegg  v.  Legh,  1  Bligh,  P.  C.  302,  new  series;  and  see  4  Madd.  193,  S.  C.|| 

If  a  vicar  file  a  bill  in  equity  for  subtraction  of  tithe,  he  must  show 
himself  entitled  by  endowment  or  augmentation  to  the  title  claimed ;  be- 
cause a  vicar  can  have  no  right  to  tithe,  except  by  endowment  or  aug- 
mentation. 

Cro.  Eliz.  633  ;  2  Bulstr.  27  ;  Bunb.  7,  72,  169.     ||See  on«.|| 

It  is  not,  however,  necessary  for  a  vicar  to  set  out  in  such  bill  the  deed 
by  which  his  vicarage  Avas  endowed  or  augmented  with  the  tithe  claimed ; 
for  if  he  can  show,  that  he  and  his  predecessors  have  constantly  received 
the  tithe,  it  shall  be  intended  that  the  vicarage  has  been  endowed  or  aug- 
mented therewith. 

2  Bulstr.  27  ;  2  Keb.  729  ;  Ilardr.  329  ;  Bunb.  7,  169. 


84  TYTHES. 

(Bb)  Of  Suits  in  Equity  for  Tithes. 

If  a  bill  be  filed  for  subtraction  of  tithe  belonging  to  a  portion  of  tithes, 
the  plaintiff  must  not  only  show  a  title  to  the  tithe  claimed,  but  he  must 
likewise  shoAV  a  receipt  of  the  tithe  by  himself  and  those  under  whom  he 
claims. 

Bunb.  325,  Charlton  v.  Charlton;  Bunb.  262,  ||See  Crayhorne  v.  Taylor,  2  Bro. 
P.  Ca.  517  ;  Gwill.  G50 ;  Lowther  v.  Bolton,  Gwill.  1120  ;  3  Eag.  &  Y.  1271. || 

If  the  defendant,  in  his  answer  to  a  bill  in  equity  for  subtraction  of 
tithe,  admit  the  plaintiff's  title  to  the  tithe  claimed,  and  only  insist  upon 
being  discharged  of  the  tithe,  or  of  the  payment  thereof,  the  want  of 
having  set  out  a  title  in  the  bill  is  thereby  cured. 
Bunb.  72,  Pye  v.  Rea  ;  Hardr.  130. 

If  a  bill  in  equity  be  filed  for  subtraction  of  a  predial  tithe,  without 
waiving  the  penalty  of  the  treble  value  given  by  the  statute,  a  demurrer 
lies  ;  for  a  court  of  equity  will  never  compel  a  defendant  to  discover  any 
thing,  by  the  discovery  of  which  he  may  become  liable  to  a  penalty. 

1  Vera.  GO,  Anon. ;  Hardr.  137,  190. 

But,  if  the  plaintiff*  in  such  bill  only  pray  relief  as  to  the  single  value 
of  the  tithe  subtracted,  it  is  not  necessary  to  waive  the  penalty. 

Bunb.  193,  The  Attorney-General  v.  Vincent;  || Wools  v.  Wallev,  1  Anstr.  100; 
Gwill.  1383.|| 

||  And  if  an  executor  file  a  bill  for  tithes,  although  he  do  not  offer  to 
accept  the  single  value,  it  is  sufficient ;  for  an  executor  not  being  entitled 
to  the  penalty,  he  is  not  obliged  to  waive  it. 

Anon.,  Gwill.  532. || 

A  bill  in  equity  having  been  filed  for  subtraction  of  tithe,  the  de' 
ant  stood  out  till  a  sequestration  was  granted,  and  the  bill  was  of  • 
taken  fro  eonfesso.     The  defendant  afterwards  moved  for  a  rule,  i. 
upon  paying  costs  the  value  of  the  tithe  might  be  ascertained  by  the  tax- 
ation of  the  master,  or  by  the  oath  of  the  plaintiff.     This  was  refused: 
but  a  rule  was  made  for  the  plaintiff  to  show  cause  why  he  should  not 
consent  to  make  oath  of  what  value  the  tithe  was. 

Bunb.  2G,  Baily  v.  Peasly. 

If  a  tender  were  made  before  the  bill  in  equity  for  subtraction  of  tithe 
was  filed,  and  a  tender  be  again  made  by  the  answer,  the  defendant  is 
not  liable  to  costs. 

Bunb.  28.  Anon. 

But,  if  the  defendant  did  not  make  a  tender  before  the  bill  was  filed,  he 
must,  notwithstanding  he  make  a  tender  by  his  answer,  account  for  the 
tithe,  and  pay  costs,  how  small  soever  the  value  of  the  tithe  subtracted  is. 

Bunb.  28,  Anon. 

If  a  bill  be  filed  in  the  Court  of  Exchequer  for  subtraction  of  tithe, 
and  the  defendant  plead,  that  a  modus  for  the  tithe  thereby  claimed  has, 
after  directing  an  issue,  been  established  by  a  decree  of  the  Court  of 
Chancery,  the  plea  is  good  in  bar  to  the  bill  in  the  Court  of  Exchequer. 

Bunb.  211,  Geale  v.  Wintour. 

A  plea  of  non-residence  is  good  in  bar  to  a  bill  in  equity,  brought  by 
a  rector  or  vicar  for  subtraction  of  tithe. 

Bun!).  211,  Geale  v.  Wintour;  ||Quilter  v.  Mussendine,  Gilb.  Exch.  R.  228. || 

But  it  must  be  shown  that  the  non-residence  was  before  the  time  in 
which  the  tithe  claimed  by  the  bill  became  due. 
Bunb.  211,  Geale  v.  Wintour. 


TYTHES  85 

(Bb)  Of  Suits  in  Equity  for  Tithes. 

The  statute  of  limitations  cannot  be  pleaded  in  bar  to  a  bill  in  equity 
for  subtraction  of  tithe;  because  the  defendant  is  considered  as  a  bailiff 
or  receiver  of  the  plaintiff,  and  that  statute  does  not  extend  to  demands 
upon  such  persons. 

Bunb.  213,  Marston  v.  Cleypole.  ||  See  Meade  v.  Norbury,  2  Price,  338 ;  3  Eag.  & 
Y.  74G ;  Carysfort  v.  Wells,  M'Clel.  &  Yo.  636.|| 

||  But  by  the  53  Geo.  3,  c.  127,  §5,  it  is  enacted,  that  no  action  shall 
be  brought  for  the  not  setting  out  tithes,  nor  any  suit  instituted  in  any 
court  of  equity,  or  in  any  ecclesiastical  court,  to  recover  the  value  of  any 
tithes,  unless  such  action  shall  be  brought,  or  such  suit  commenced,  -within 
six  years  from  the  time  when  such  tithes  became  due.)! 

If  a  bill  in  equity  be  filed  for  subtraction  of  tithe  due  of  common  right, 
the  defendant  cannot  avail  himself  of  a  discharge  of  the  tithe,  or  of  the 
payment  thereof,  unless  the  discharge  be  specially  pleaded. 

Bunb.  61,  Jordan  v.  Colley. 

A  discharge  of  the  tithe  of  one  thing,  or  of  the  payment  thereof,  may 
be  insisted  upon,  in  an  answer  to  a  bill  in  equity  for  subtraction  of  tithes 
of  divers  things. 

Bunb.  297,  Leigh  v.  Maudsley. 

But  if  the  defendant,  in  his  answer,  insist  upon  a  discharge  of  all 
tithes,  or  of  the  payment  thereof,  and  prove  only  a  discharge  of  some 
tithes,  or  of  the  payment  thereof,  he  cannot  derive  any  benefit  from  the 
discharge  proved. 

Bunb.  297,  Leigh  v,  Maudsley. 

Divers  moduses  for  the  tithes  of  divers  things  may  be  insisted  upon  in 
an  answer  to  a  bill  in  equity  for  subtraction  of  tithes :  but  they  must  be 
pleaded  severally ;  for  one  modus  cannot  be  pleaded  distributively  for 
the  tithes  of  divers  things. 

Bunb.  80,  Tarton  v.  Clayton. 

If  a  modus  be  insisted  upon,  in  an  answer  to  a  bill  in  equity  for  sub- 
traction of  tithe,  the  day  upon  which  it  is  to  be  paid  ought  to  be  set  out. 

And  in  three  modern  cases  the  moduses  were  disallowed ;  because  the 
days  of  paying  them  were  not  set  out  in  the  respective  answers. 

Bunb.  105,  Goddard  v.  Keeble,  Pasch.  8  G.  1 ;  Pemberton  v.  Sparrow,  Trin.  8  G. 
1 ;  Eloy  v.  Prior,  Hil.  10  G.  1. 

But  in  another  modern  case,  wherein  a  modus,  the  day  of  paying 
which  was  not  set  out,  had  upon  an  issue  directed  been  found  for  the 
|  defendant,  it  was  holden,  that  the  defect  of  having  set  this  out  was  cured 
I  by  the  verdict ;  and  the  modus  was  established. 
Bunb.  280,  Woolferston  v.  Manwaring,  Hil.  3  G.  2. 

In  a  still  later  case,  the  following  distinction  was  taken  by  Reynolds,  C. 

B.,  namely,  that  the  want  of  having  set  out  the  day  upon  which  a  modus 

is  to  be  paid,  in  an  answer  to  a  bill  in  equity  for  subtraction  of  tithes, 

may  be  so  supplied  by  evidence  as  to  be  a  foundation  for  the  court  to 

:  direct  an  issue  to  try  whether  there  be  the  modus,  with  liberty  to  endorse 

i  the  day  of  payment  upon  the  posted  ;  but  that  if  a  bill  in  equity  be  brought 

I  to  establish  a  modus,  the  day  of  paying  it  must  be  expressly  set  out. (a) 

Bunb.  328,  Gibb  v.  Goodman,  Trin.  7  G.  2.     ||  (a)  It  seems  clear  that  greater  cer- 
tainty is  required  in  the  statement  of  a  modus  in  a  bill  than  in  an  answer ;  but  it  seems 
'■that  in  either  case  it  is  sufficient  to  state  the  modus  to  be  payable  on  or  about  a  particu- 
•  lar  day.    Richards  v.  Evans,  1  Ves.  30 ;  Gwill.  802 ;  Baker  v.  Athill,  2  Anst.  491 ; 

H 


86  TYTHES. 

(Bb)  Of  Suits  in  Equity  for  Tithes. 

Gwill.  1422;  Atkins  v.  Hatton,  4  Wood.  410;  Atkins  v.  Lord  Willoughby,  4  Wood, 
410  ;  Cart  v.  Hodgkin,  3  Swanst.  100  ;  Gwill.  814.  But  some  time  of  payment  ought 
to  be  specified.  Roberta  v.  Williams,  12  East,  33  ;  and  see  Scott  v.  Carter,  1  Younge 
&  J.  452.  The  court  will  establish  a  modus,  though  proved  to  be  payable  on  a  day 
different  from  that  alleged  in  the  bill.  Anderdon  v.  Davies,  Gwill.  12G8;  sed  vide  con- 
tra, Goodwin  v.  Wortley,  2  Wood,  331 ;  Gwill.  715. || 

It  was  holden  in  one  case,  that  it  is  incumbent  upon  the  plaintiff  to 
prove  the  quantity  and  value  of  the  tithe  claimed  by  a  bill  in  equity  for 
subtraction  of  tithe. 

Hardr.  4,  The  Attorney-General  v.  Straite. 

But  the  authority  of  this  case  has  been  often  denied ;  and  it  is  now  con- 
stantly holden,  that  the  defendant  must  in  all  cases,(a)  even  where  a  modus 
is  pleaded,  set  out,  in  his  answer  to  a  bill  in  equity  for  subtraction  of  tithe, 
the  quantity  and  value  of  the  tithe  claimed  by  the  bill ;  because  it  fre- 
quently happens  that  no  person  except  himself  knows  these  things. 

Bunb.  GO,  Gumley  v.  Fontleroy.  ||  (a)  Not,  however,  in  cases  where  the  plea  abso- 
lutely denies  the  plaintiff's  title,  (which  a  modus  does  not;)  as  where  the  defendant 
pleads  non-residence  of  the  incumbent  as  a  bar  under  the  13  Eliz.  c.  20  ;  Mills  v.  Eth- 
eridge,  Bunb.  210 ;  Eag.  &  Y.  806 ;  Quilter  v.  Mussendin,  Gilb.  Eq.  R.  228 ;  Gwill. 
667.|| 

It  was  not  heretofore  the  practice  of  the  Court  of  Exchequer  to  decree, 
that  the  defendant  should  account  for  tithe  which  became  due  after  the 
filing  of  the  bill  fur  subtraction  of  tithe. 

2  P.  Wms.  403,  Carleton  v.  Brightwell. 

But  the  practice,  at  that  time,  of  the  Court  of  Chancery,  was  to  de- 
cree that  an  account  should  be  taken  of  all  tithes  due  at  the  time  of 
making  the  decree. 

2  P.  Wms.  4G3,  Carleton  v.  Brightwell.  [So,  Abp.  of  York  v.  Stapelton,  2  Atk. 
13G  ;  Bell  v.  Read,  3  Atk.  592.] 

And  it  was  said  in  a  case  in  the  Court  of  King's  Bench,  by  Lord 
Mansfield,  C.  J.,  that  the  practice  of  the  Court  of  Exchequer  is  at  this 
day  the  same  as  that  of  the  Court  of  Chancery. 

MS.  Rep.  Robinson  v.  Bland,  Mich.  1  G.  3.  ||In  the  Exchequer,  the  decree  is,  to 
account  for  tithes  due  to  the  filing  of  the  bill :  in  the  Court  of  Chancery,  to  the  time 
of  the  Master's  report.  2  Atk.  136  ;  Gwill.  773  ;  3  Atk.  590 ;  Gwill.  804 ;  2  P.  Will. 
4G2;  Gwill.  670.  || 

The  right  of  a  court  of  equity  to  decree  an  account  and  payment  of 
tithes,  at  the  suit  of  a  person  claiming  such  tithes,  must  be  grounded  on  a 
clear,  unquestionable,  legal  right  of  tithes  in  the  plaintiff,  or  in  some  person 
in  trust  for  him  ;  the  right  to  the  account  being  merelg  consequential  in  the 
legal  rigid  to  the  tithes.  The  courts  of  equity,  therefore,  have  constantly 
made  a  distinction  between  those  cases  in  which  the  title  of  the  plaintiff  to 
the  tithes  claimed  is  not  generally  disputed,  but  it  is  objected  only  that  the 
lands  from  which  they  are  claimed  are  exempt  or  discharged  from  pay- 
ment of  tithes  ;  or,  that  the  tithes  claimed  arc  not  payable  in  kind,  but  are 
to  be  satisfied  in  some  other  manner,  as  by  a  payment  of  a  modus  or  com- 
position real :  and  these  cases,  in  which  the  title  to  the  tithe  claimed  is 
denied  to  the  plaintiff,  and  a  title  is  set  up  in  another  person.  In  the  first 
description  of  cases,  the  defendant  claiming  the  benefit  of  an  exemption  or 
discharge,  or  of  a  modus,  or  real  composition,  acknowledges  the  original 
title  of  the  plaintiff,  as  alleged  by  him,  but  qualifies  that  title,  cither  by  an 
absolute  discharge  from  payment  of  the  tithes  demanded,  or  by  a  right  to 
satisfy  that  demand,  otherwise  than  by  payment  of  the  tithes  in  kind.     In 


TYTHES.  87 

(Bb)  Of  Suits  in  Equity  for  Tithes. 

the  second  description  of  cases,  the  existence  of  that  title  to  the  tithes  in 
question  is  absolutely  and  totally  denied,  and  it  is  objected,  that  the  title 
is  in  some  other  person  :  and  in  these  cases,  if  the  person  in  whom  the  title 
is  thus  stated  has  had  the  pernancy  of  the  tithes  claimed,  the  bill  is  in  effect 
an  ejectment  bill;  and  where  the  legal  title  of  the  plaintiff  is  disputed  on 
bills,  which  may  be  properly  called  ejeetment  bills,  it  is  not  the  ordinary 
practice  of  courts  of  equity  to  make  any  decree  whatever,  except  for  the 
purpose  of  assisting  the  trial  at  Jaw,  where  such  assistance  may  be  neces- 
sary. Thus,  where  a  bill  was  filed  by  Dr.  Scott,  as  rector  of  Simonburne, 
claiming  tithes  of  corn  and  hay  against  the  defendants,  several  of  whom 
were  occupiers  of  lands  within  the  parish,  and  the  Aireys  were  owners  of 
part  of  the  lands,  and  claimed  the  tithes  of  corn  and  hay  of  their  own  lands, 
and  of  those  occupied  by  the  other  defendants  ;  and  it  appeared  that  the 
Aireys,  and  those  under  whom  they  claimed,  had  received  the  tithes  in 
question,  and  made  them  the  subject  of  settlement  for  above  160  years, 
although  they  could  show  no  original  lawful  title  to  such  tithes  ;  the  Court 
of  Exchequer  dismissed  the  bill,  refusing  to  give  the  rector  any  relief, 
until  he  had  established  his  title  to  the  tithes  at  law.  And  in  Edwards  v. 
Lord  Vernon,  Hil.  21  G.  3,  where,  to  a  bill  by  the  spiritual  rector,  the 
defence  set  up  was,  a  title  to  the  tithes  under  family  settlements,  and  pos- 
i  session  for  seventy-one  years,  the  Court  of  Exchequer  followed  the 
authority  of  Scott  v.  Airey,  and  dismissed  the  bill  with  costs. 

Sop  the  argument  for  the  appellant  in  the  ease  of  Barnard  v.  Gannons,  Dom.  Proc. 
•June  3,  1797  :  Scott  v.  Airey,  Tr.  19  G.  3  ;  ||6wiU.  1174  ;  2  Eag.  &  Y.  342.||  See 
also  Strutt  v.  Baker,  2  Ves.  J.  625 ;  ||Gwill.  1430.|j 

In  a  subsequent  case,  where  Sir  Joseph  Mawbey  claimed,  as  impropriate 
rector,  tithes  of  land,  of  which  some  of  the  defendants  also  claimed  the 
tithes ;  it  was  objected  that  the  plaintiff's  title  was  a  legal  title,  and  that 
he  must  first  demand  the  tithes  at  law.  The  Court  of  Exchequer  said  it 
was  a  question  of  title,  the  evidence  of  possession  was  doubtful,  and  a 
court  of  equity  would  therefore  not  make  any  decree  till  the  right  had  been 
settled  at  law,  the  account  prayed  being  merely  consequential  to  the  right, 
and  the  proper  tribunal  for  the  trial  of  right,  if  the  possession  was  equivo- 
cal, and  for  construction  of  deeds  under  which  parties  claimed,  was  a 
court  of  law;  and  although  the  counsel  for  the  plaintiff  pressed  to  have 
an  issue  directed,  in  order  to  have  the  right  tried  at  law,  with  the  assist- 
ance of  the  court,  the  court  refused  it,  and  dismissed  the  bill. 

Mawbey  v.  Edmead,  Hil.  24  G.  3  ;  ||Gwill.  1205  ;  3  Eag.  &  Y.  132G.|| 

To  a  claim  by  a  vicar  of  the  tithe  of  hay  under  an  endowment,  the  de- 
fendants, the  terre-tenants,  set  up  a  payment  to  the  vicar  in  lieu  of  such 
tithe.  This  was  holden  by  the  Court  of  Exchequer  to  be  a  bad  modus, 
and  they  thereupon  gave  judgment  for  an  account  of  tithes,  considering 
the  vicar's  claim  as  established  by  the  payments.  But  upon  a  writ  of 
error  the  House  of  Lords  directed  an  issue  to  try  the  nature  of  the  pay- 
ments, Lord  Mansfield  declaring  his  opinion  that  on  a  vicar's  title  being 
disputed,  unless  it  is  perfectly  clear,  a  court  of  equity  ought  not  to  make 
a  decree  without  having  the  fact  ascertained  by  a  jury. 

Travis  v.  Oxton,  Anstr.  o08  ;  2  Raym.  762. 

"Where  a  vicar  sued  for  all  small  tithes  under  an  endowment,  which  he 
produced,  and  also  gave  in  evidence  a  decree  in  the  Exchequer  for  an 
account  of  all  small  tithes  in  a  suit  by  his  predecessor,  in  the  reign  of 
Charles  the  First,  yet  as  the  endowment  was  not  supported  by  usage,  &c, 


88  TYTHES.  I 

(Bb)  Of  Suits  in  Equity  for  Tithes, 
the  decree  was  not  binding,  the  patron  not  being  a  party,  and  as  it  bad 
never  been  acted  under,  the  Court  of  Exchequer  thought  the  case  not  so 
clear  as  to  warrant  a  decree  in  favour  of  the  vicar,  and  directed  an  issue 
to  try  whether  he  was  entitled  under  the  endowment  or  not ;  and  that 
decision  was  affirmed  in  the  House  of  Lords. 

Can-  v.  Henton,  Anstr.  313  ;  ||Gwill.  1258  ;  7  Bro.  P.  Ca.  140  ;  3  Eag.  &  Y.  1320  ;|| 
March  5,  1788. 

The  account  being  consequential  to  the  legal  title,  and  a  rector  having 
primd  facie  the  title  to  all  the  tithes  in  him,  it  should  seem  to  follow  that, 
in  questions  between  the  rector  and  vicar,  a  court  of  equity  cannot  make  a 
decree  in  derogation  of  the  rector's  title,  merely  as  consequential  to  the 
legal  title  of  the  vicar,  until  that  title  has  been  established  by  the  decision 
of&a  jury,  unless  it  be  most  clearly  and  satisfactorily  made  out.  Perhaps 
it  may  be  questioned  whether  a  court  of  equity  can  decide  between  rector 
and  vicar,  that  the  former  has  no  title,  however  clear  the  proofs  may  be 
against  it,  without  the  intervention  of  a  jury,  if  the  rector  insist  upon 
referring  it  to  that  tribunal,  any  more  than  they  can  make  a  decree  without 
reference  to  a  jury,  where  the  rector  demands  such  a  reference,  in  a  ques- 
tion of  modus  between  the  rector  and  the  owner  or  occupier  of  the  land. 
For  the  primd  facie  title  which  gives  the  rector  a  right  to  the  discussion 
of  the  question  in  a  court  of  law  in  one  case,  should  seem  to  give  him  the 
like  right  in  the  other  case.  A  vicar  should  appear  to  be  as  much  bound 
to  make  out  his  title  against  that  of  his  rector  by  pleading  and  by  evi- 
dence, as  an  occupier  is  to  make  out  his  exemption  or  qualification :  they 
both  alike  claim  in  derogation  of  a  common  law  right. 

See  the  case  Garnons  v.  Barnard,  Anstr.  29G,and  printed  case  in  the  House  of  Lords, 
June  3,  1797  ;  Bantley  v.  Walters,  1  Wils.  170.  ||it  is  now  settled,  that  in  questions 
between  the  rector  and  vicar,  though  the  rector  is  the  party  suing,  he  is  not  entitled, 
as  a  matter  of  right,  to  an  issue.  The  court  will  dismiss  his  bill  at  once,  if  the  vicar 
makes  out  a  clear  case  under  his  endowment,  or  by  evidence  of  perception  sufficient 
to  found  a  presumption  of  an  endowment.  Dorman  v.  Curry,  4  Price,  109  ;  Gwill. 
1822;  1  Wils.  E.  R.  46;  and  see  AVilliams  v.  Price,  4  Price,  156;  Gwill.  1827; 
Parsons  v.  Bellamy,  4  Price,  190  ;  Gwill.  1829.  It  seems  that  a  vicar  is  not  entitled 
to  an  issue  as  of  course.     Patch  v.  Dalton,  6  Price,  232 ;  Gwill.  1938.  || 

It  has,  indeed,  been  urged,  that  a  decree  in  favour  of  the  vicar  for  an 
account  does  not  bind  the  right,  and  therefore  it  is  not  necessary  for  the 
court  to  direct  an  issue.  But  it  may  be  very  much  doubted,  whether  such 
a  decree  would  not  in  effect  bind  the  right :  for  the  distinction  which  has 
been  set  up  between  decrees  binding  the  right,  and  decrees  not  binding 
the  right,  has  been  confined  to  a  very  different  case  ;  namely,  where  a  de- 
fendant sets  up  a  defence  by  way  of  modus  to  a  bill  for  tithes,  which  prays 
an  establishment  of  the  right,  as  well  as  an  account ;  and  the  defendant 
in  his  answer  has  made  some  mistake  in  laying  the  modus,  so  that  the 
cunt  cannot  upon  those  pleadings  direct  an  issue.  There,  the  court,  un- 
able  to  direct  an  issue,  for  want  of  sufficient  matter  on  the  record,  has 
made  a  decree  for  an  account  only,  to  give  the  defendant  an  opportunity 
of  trying  his  title  upon  a  future  suit.  And  most  clearly  such  a  decree 
cannot  be  pleaded  in  bar  to  a  bill  for  establishing  the  modus.  But  if  the 
decree  for  an  account  does  not  in  general  bind  the  right,  then  this  absurdity 
might  follow,  that  the  court  might  from  time  to  time  make  similar  de- 
crees, without  directing  any  issue  to  try  the  fact  of  title,  upon  the  allega- 
tion that  no  one  of  such  decrees  actually  binds  the  right. 

Collins  v.  Gough,  Dom.  Proc.  16  Feb.  1785. 


TYTHES.  S9 

(Bb)  Of  suits  in  Equity  for  Tithes. 

||  A  court  of  equity  may,  in  general,  decide  conclusively  in  the  first  in- 
stance, in  tithe-suits,  as  well  as  others,  without  directing  an  issue.  The 
direction  of  an  issue  is  discretionary,  in  order  to  inform  the  conscience 
of  the  court. 

Bullon  v.  Michel,  2  Price,  399 ;  and  see  Ilawtrey  v.  Daniel,  7  Bro.  P.  C.  21 ;  Short 
v.  Lee,  2  Jac.  &  W.  4G4 ;  Gwill.  1998;  Fisher  v.  Lord  Graves,  1  M'Clel.  &  Y.  302; 
3  Lag.  &  Y.  1180;  Sanders  v.  Longden,  4  Price,  117 ;  Gwill.  1824. 

Where  the  effect  of  certain  ancient  documents  was  such  as  to  create  an 
equivocal  case,  the  court  directed  an  issue,  in  order  that  more  satisfactory 
information  might  be  furnished  than  could  be  obtained  from  depositions 
on  paper. 

Leathes  v.  Newitt,  4  Price,  355 ;  8  Price,  5G2. 

So,  where  the  case  depended  on  inference  to  be  drawn  from  a  com- 
parison of  conflicting  testimony,  the  court  would  not  draw  the  inference 
without  reference  to  a  jury. 

Taylor  v.  Cook,  8  Price,  G50 ;  Stokes  v.  Edmeads,  1  M'Clel.  &  Youn.  43G. 

It  is  equally  in  the  discretion  of  the  court  to  grant  or  refuse  a  new 
trial ;  and  it  may  order  evidence  to  be  received,  though  not  strictly  admis- 
sible, on  a  trial  at  law ;  and  it  will  send  the  issue  down  as  often  as  the  result 
is  unsatisfactory;  and  it  will  not  grant  a  new  trial,  merely  on  the  ground 
that  evidence  not  strictly  admissible  has  been  received,  if,  independently 
of  such  evidence,  the  court  is  satisfied  with  the  verdict ;  nor  on  the 
ground  of  the  rejection  of  admissible  evidence,  if,  taking  such  evidence 
into  consideration,  it  is  satisfied  the  verdict  ought  still  to  stand. 

Bowsher  v.  Morgan,  2  Anst.  404 ;  Potts  v.  Durant,  3  Ibid.  797 ;  Barnard  v.  Gar- 
nons,  7  Bro.  P.  C.  105  ;  Foxcraft  v.  Paris,  5  Yes.  221 ;  Sanders  v.  Longden,  4  Price, 
117  ;  White  v.  Lisle,  4  Madd.  214. 

"Where  the  rector  sues  as  plaintiff,  he  is  in  general  entitled  to  an  issue 
as  matter  of  right,  but  not  where  he  is  defendant ;  and  where  the  plain- 
tiff's claim  as  rector  is  defeated,  by  the  defendant's  clearly  proving  him- 
self entitled  to  the  rectorial  tithes,  there  the  plaintiff  is  not  entitled  to 
an  issue :  he  is  only  entitled  of  right  to  an  issue  where  the  defence 
amounts  to  a  recognition  of  his  primd  facie  right  as  rector. 

Williams  v.  Price,  4  Price,  1G0  ;  Cockburn  v.  Hughes,  3  Price.  430 ;  Wilmot  v. 
Hellabv,  5  Price,  355  ;  Gwill.  1874;  and  see  Barker  v.  Barker,  Wightw.  398;  Gwill. 
1695  ;  Strutt  v.  Baker,  4  Gwill.  1430;  2  Yes.  J.  G25.|| 

A  suit  may  be  maintained  in  a  court  of  equity  for  an  account  of  tithes 
in  London,  notwithstanding  the  statute  and  decree  of  87  II.  8,  c.  12  ;  for 
an  act  of  parliament  creating  a  special  jurisdiction  never  ousts  the  juris- 
diction of  the  courts  of  Westminster  Hall.  Nor  is  it  true,  that  if  a 
statute  creates  a  new  right,  one  cannot  go  beyond  it :  for  if  a  statute 
creates  a  new  right,  it  creates  a  new  duty:  if  the  performance  of  that 
duty  requires  the  interference  of  a  court  of  equity,  the  execution  of  the 
statute  must  of  course  be  with  the  necessary  circumstances. 

Canons  of  St.  Paul's  v.  Crickctt,  2  Yes.  J.  563  ;  ||Gwill.  1425  ;  2  Eag.  &  Y.  417. 
As  to  the  question,  whether  the  decree  under  the  statute  37  H.  8,  c.  12,  must  now  be 
presumed  to  be  enrolled,  see  Owen  v.  Nodin,  M'Clel.  239;  3  Eag.  &  Y.  1149; 
M'Dougall  v.  Young,  2  Carr.  &  Pa.  Ca.  278  ;  M'Dougall  v.  Purrier,  2  Eag.  on  Tithes, 
458  ;  and  Tyrwhitt's  Argument  on  the  non-enrolment  of  the  decree,  &c.  (1823),  and 
ante.\\ 

Vol.  X.— 12  11  2 


90  TYTHES. 

(Cc)  Of  a  Suit  in  a  Court  of  Equity  to  establish  a  Modus,  or  a  customary  Manner  of 

setting  out  Tithes. 

It  was  formerly  doubted,  whether  a  bill  could  be  filed  in  a  court  of 
equity  to  establish  a  modus  by  prescription,  or  a  customary  manner  of 
setting  out  tithes ;  and  such  bills  have  frequently  been  dismissed. 

1  Vera.  185  ;  Nels.  Ch.  R.  10 ;  1  Chan.  Ca.  187. 

But  it  is  now  the  practice  of  courts  of  equity  to  retain  such  bill,  which 
is  in  reality  no  more  than  a  bill  to  perpetuate  the  testimony  of  witnesses 
as  to  the  modus  or  customary  manner  of  setting  out  tithes. 

1  Vera.  485  ;  1  Eq.  Ca.  Abr.  3G7  ;  2  P.  Wms.  505. 

If  a  bill  in  equity  be  filed  against  the  lessee  of  a  rector,  vicar,  or  im- 
propriator, to  establish  a  modus,  the  rector,  vicar,  or  impropriator  must 
be  a  party ;  for  a  court  of  equity  will  never  bind  the  right  of  any  person, 
without  giving  him  an  opportunity  of  being  heard. 

Bunb.  70,  Glanville  v.  Trelawney;  ||Gwill.  022;  1  Eag.  &  Y.  753.|| 

The  day  on  which  the  modus  is  to  be  paid  must  be  expressly  set  out 
in  a  bill  in  equity  to  establish  a  modus. 

Bunb.  328,  Gibb  v.  Goodman.  ||But  it  seems  sufficient  to  state  it  on  or  about  a  par- 
ticular day.  Richards  v.  Evans,  1  Ves.  30;  Gwill.  802  ;  Baker  v.  Athill,  2  Anst,  491  ; 
Gwill.  1422;  Atkins  v.  Ilatton,  4  Wood,  410;  Atkins  v.  Willoughby,  4  Wood,  410; 
and  see  ant£.\\ 

But,  if  the  setting  out  of  the  day  of  payment  be  omitted  in  a  bill  to 
establish  a  modus,  the  court  will  give  the  plaintiff  leave  to  amend  his 
bill,  upon  paying  the  costs  of  the  day. 

Bunb.  199,  Blackett  v.  Finny. 

A  court  of  equity  never  establishes  a  modus,  or  a  customary  manner 
of  setting  out  tithe,  until  the  validity  thereof  has  been  tried  at  law ;  in  case 
a  party,  whose  right  may  be  thereby  affected,  desire  to  have  it  so  tried. 

Sel.  Ca.  in  Chan.  53,  Webber  v.  Taylor;  ||Gwill.  G5G  ;  1  Eag.  &  Y.  802;  Robinson 
v.  liarroby,  Gwill.  1173  ;  3  Eag.  &  Y.  1283  ;  Markham  v.  Huxley,  Gwill.  1499.|| 

If  a  bill  in  equity  be  filed  to  establish  a  modus,  and  the  modus  be  not 
proved  in  the  manner  it  is  set  out  in  the  bill ;  yet,  if  the  defendant  admit 
that  there  is  a  modus,  and  the  difference  betwixt  him  and  the  plaintiff 
be  only  as  to  the  extent  of  the  modus,  the  court  will  direct  an  issue  at 
law  to  try  how  far  it  does  extend,  with  liberty  to  endorse  the  posted  as  it 
may  be  necessary. 

Bunb.  340,  Laithes  v.  Christian.  ||See  Provost  v.  Bennett,  2  Price,  272:  Gwill. 
723  •  3  Ea»\  &  Y.  720;  Williams  v.  Williams,  Gwill.  1165  ;  3  Eag.  &  Y.  1270;  Ben- 
nett v.  Read,  Gwill.  1291  ;  3  Eag.  &  Y.  I338.|| 

||  A  bill  to  establish  a  modus  cannot  be  brought  on  a  simple  demand  of 
tithes  being  made  by  the  parson,  without  any  suit  for  enforcing  payment. 

Coventry  v.  Burslem,  2  Anstr.  567,  n.;  Gordon  v.  Simkinson,  11  Yes.  509;  De 
Whelpdale  v.  Milburn,  5  Price,  483;  Hales  v.  Pomfret,  Dan.  141;  Gwill.  1884. 

But  if  an  action  is  brought  by  the  lessee  of  tithes  for  subtraction,  it  is 
a  sufficient  ground  for  such  a  bill. 

Stawell  v.  Atkyns,  Anstr.  564;  Gwill.  1434  :  and  see  Wollaston  v.  Wright,  3  Anstr. 
sol. 

The  patron  and  ordinary  are  necessary  parties  to  such  a  bill;  and 
therefore  the  defendant,  in  a  suit  in  equity  for  tithes,  cannot  set  up  mo- 
duses,  as  established  by  a  previous  decree,  to  which  the  patron  and 
ordinary  were  not  parties. 

Jenkinson  v.  Royston,5  Price,  495  ;  and  see  Cook  v.  Butt,  6  Madd.  55 ;  Gwill.  2029. || 


TYTHES.  91 

(DJ)  Action  on  the  Statute  for  Subtraction  of  Tithes. 

A  bill  to  establish  a  farm  modus,  sotting  foitli  the  abuttals  of  the  farm, 

and  averring  that  the  modus  had  immemorial Iy  been  paid  for  the  said 

farm,  is  sufficient,  without  expressly  averring  it  to  be  an  ancient  farm. 

Lord  Stawell  v.  Atkyns,  Anstr.  564;  ||GwiIl.  1434:  2  Eag.  &  You.  410  ;  and  see 
Scan-  v.  Trinity  College,  3  Anstr.  7G0  :  Gwill.  L445  ;  2  Eag.  &  Yuu.  429.|| 

But  a  bill  to  establish  a  modus  for  every  ancient  farm,  stating  the 
whole  parish  to  consist  of  ancient  farms,  but  not  setting  forth  the  abuttals 
of  each,  is  bad. 

Scott  v.  Allgood,  Anstr.  1G  ;  |Gwill.  1369  ;  3  Eag.  &  You.  1372.  In  this  case  the 
modus  was  stated  in  the  same  terms  in  the  answer  to  the  original  bill  for  tithes ;  and 
it  was  held  well  pleaded  in  the  answer  but  ill  in  the  bill  to  establish  the  modus  ;  this 
being  an  application  for  the  extraordinary  assistance  of  the  court.  || 

(Dd)  Of  an  Action  upon  the  Statute  against  Subtraction  of  Tithes. 

An  action  lay  at  the  common  law  for  tenths ;  because  a  layman  was  at 
all  times  capable  of  having  tenths. 

lire.  Dism.  pi.  1,  pi.  5,  pi.  G  ;  Cro.  Eliz.  599,  7G3. 

An  action  also  lay  at  the  common  law  against  the  person  carrying 
away  tithe  which  had  been  legally  severed ;  for  by  the  severance  it  be- 
came a  lay-chattel. 

Bro.  Dism.  pi.  G  ;  Cro.  Eliz.  G07  ;  Latch.  8 :  3  Bulstr.  337. 

But  no  action  lay  at  the  common  law  for  subtraction  of  tithe;  the 
remedy  being  only  in  the  spiritual  courts. 
Bro.  Dism.  pi.  1,  pi.  5,  pi.  G,  pi.  10  ;  2  Rep.  44;  Yaugh.  195. 

Coke,  C.  J.,  was  of  opinion,  that  a  power  is  given  by  the  82  IT.  8,  c. 
7,  to  sue  for  subtraction  of  tithe  in  the  temporal  courts. 
2  Inst.  141. 

But  this  is  denied  by  Vaughan,  C.  J.  :  and  it  appears,  upon  looking 
into  this  statute,  that  the.  power  given  to  sue  for  tithe  in  a  temporal  court 
is  only  a  power  to  sue  for  an  estate  in  tithe. 

Yaugh.  195,  Holden  v.  Smallbrooke. 

Nay,  so  far  from  giving  a  power  to  sue  in  temporal  courts  for  subtrac- 
tion of  tithe,  it  is  by  §  8,  of  this  statute,  expressly  provided,  "  That  it 
shall  not  extend  to  give  any  remedy,  cause  of  action,  or  suit,  in  the 
temporal  courts,  against  any  person  who  shall  refuse  to  set  out  his  tithes, 
or  who  shall  detain,  withhold,  or  refuse  to  pay  his  tithes," 

By  the  2  &  3  Ed.  6,  c.  13,  §  1,  it  is  enacted,  "  That  every  of  the  king's 
subjects  shall  from  henceforth  truly  and  justly,  without  fraud  or  guile, 
divide,  set  out,  yield,  and  pay  all  manner  of  predial  tithes  in  their  proper 
kind,  as  they  rise  and  happen,  in  such  manner  and  form  as  hath  been  of 
right  yielded  and  paid  within  forty  years  next  before  the  making  of  this 
act,(«)  or  of  right  or  custom  ought  to  have  been  yielded  or  paid  :  and  that 
no  person  shall  from  henceforth  take  and  carry  away  any  such  tithes,  which 
have  been  yielded  or  paid  within  forty  years,  or  of  right  ought  to  have 
been  yielded  or  paid  in  the  place  or  places  tithable  of  the  same,  before  he 
hath  justly  divided  or  set  forth  for  the  tithe  thereof  the  tenth  part  of  the 
same,  or  otherwise  agreed  for  the  same  tithe  with  the  parson,  vicar,  or 
other  owner,  proprietor,  or  farmer  of  the  same  tithes ;  under  the  pain 
of  forfeiture  of  the  treble  value  of  the  tithes  so  taken  or  carried  away." 

[(a)  Where  the  declaration  stated,  that  tithes  were  within  forty  years  next  before 
the  statute  of  right  yielded,  and  payable,  and  yielded  and  paid,  evidence  that  the  land 


92  TYTHES. 

(Dd)  Action  on  the  Statute  for  Subtraction  of  Tithes. 

had  always  been  remembered  to  be  in  pasture,  and  had  never  within  memory  paid 
any  tithe,  was  not  thought  sufficient  to  defeat  the  action.  Mitchell  v.  Walker,  5  Term 
B,.  260.  Secies,  where  there  was  no  evidence  of  any  payment  of  tithe,  and  the  de- 
claration only  stated  that  tithe  had  been  yielded  and  paid  forty  years  before  the  statute. 
Lord  Manslield  v.  Clarke,  Ibid.  264.  ||  A  declaration  on  the  statute  omitting  to  allege 
that  the  tithes  have  been  of  right  yielded  and  payable,  and  yielded  and  paid  within 
forty  years  before  the  passing  of  the  statutes,  is  defective,  and  not  cured  by  verdict. 
Butt  v.  Howard,  4  Barn.  &  A.  655. || 

||  Where  the  plaintiff  alleges  in  a  declaration  on  the  statute,  that  a  par- 
ticular species  of  tithes  was  granted,  yielded  and  paid,  and  of  right  due 
and  payable,  on  the  land  forty  years  before  the  making  of  the  statute, 
he  is  not  bound  to  prove  that  the  particular  article  was  cultivated  there 
at  that  time,  but  it  is  for  the  defendant  to  prove  the  contrary  ;  and,  in 
the  absence  of  such  proof,  the  court  will  not  presume  that  they  were  not 
cultivated,  although  the  articles  are  such  as  are  generally  considered  to 
be  of  subsequent  introduction  into  this  country. 

Hallewell  v.  Trappes,  2  New  Rep.  173. 

By  the  fourth  section  of  the  above  statute,  2  &  3  Edw.  6,  c.  13,  §  4,  it 
is  provided  and  enacted,  that  no  person  shall  be  sued  or  compelled  to 
yield,  give,  or  pay  any  manner  of  tithes  for  any  manors,  lands,  tene- 
ments, or  hereditaments,  which  by  the  laws  of  the  realm,  or  by  privilege 
or  prescription,  are  not  chargeable  with  the  payment  of  any  such  tithes, 
or  that  be  discharged  by  any  composition  real. 

A  prescription  or  modus  must  be  good  in  laiv,  as  well  as  established  in 
fact,  in  order  to  exempt  lands  from  tithe  within  this  section  ;  the  validity 
of  it  may  be  tried  in  an  action  for  treble  value  on  this  statute,  and  unless 
Borne  certain  and  good  modus  is  established,  the  rector  cannot  be  ousted 
of  his  common  law  right;  proof  of  varying  modes  of  payment,  in  lieu 
of  tithes,  is  not  sufficient  for  that  purpose ;  and  the  rector  may  recover 
on  his  common  law  right,  even  although  he  himself  tries  to  establish  a 
customary  mode  of  tithing,  and  fails  in  the  proof  of  it. 

Phillips  v.  Davies,  8  East,  R.  178;  Blundell  v.  Mawdesley,  15  East,  641. || 

An  information  qui  tarn  does  not  lie  for  the  forfeiture  given  by  this 
statute  ;  because  no  part  of  the  forfeiture  is  given  to  the  king. 

2  Inst.  650;  8  Hep.  119;  Cro.  Eliz.  621. 

But  it  is  said  that  an  information  qui  tarn  may  be  upon  this  statute,  if 
the  forfeiture  be  waived ;  for  that  the  king  would  then  be  entitled  to  a  fine. 

Hetl.  121,  Luvered  v.  Owen  ;   ||1  Eag.  &  Y.  368.|| 

Although  the  penalty  given  by  the  2  &  3  E.  6,  c.  13,  be  not  a  certain 
sum  of  money,  it  has  been  holden  that  an  action  of  debt  lies  upon  the 

statute. 
Cro.  Eliz.  021,  Johns  v.  Came. 

]|  The  statute  is  considered  remedial  rather  than  penal ;  and,  there- 
fore, the  courts  will  grant  a  new  trial  in  an  action  upon  it,  if  the  verdict 
be  against  evidence. 

Lord  Selsca  v.  Powell,  6  Taunt.  297.|| 

If  the  owner  of  corn,  before  the  corn  is  severed,  grant  it  to  a  stranger, 
•with  an  intent  to  defraud  the  parson  of  his  tithe,  this  is  such  fraud  and 
guile,  that  an  action  upon  the  statute  will  lie  against  the  first  owner  of 
the  corn. 

2  Bulstr.  184,  Moyle  v.  Ewer  ;  2  Inet.  649. 


TYTHES.  93 

(Dd)  Action  on  the  Statute  for  Subtraction  of  Tithes. 

If  a  man,  who  has  fairly  set  out  his  tithe,  do  in  a  short  time  after  carry 
away  the  same,  this  is  fraud  and  guile  within  the  meaning  of  the  statute. 

2  Inst,  649. 

In  an  action  of  debt  upon  the  statute,  the  plaintiff  declared  for  the  sub- 
traction of  mixed  tithes,  as  well  as  predial  ones,  and  had  a  verdict  as  to 
the  whole.  It  was  insisted,  that  an  action  does  not  lie  upon  the  statute 
for  the  subtraction  of  any  tithes  except  predial  ones;  and  the  judgment 
was  arrested. 

Brownl.  65,  Pain  v.  Nicols. 

||  The  action  only  lies  for  such  predial  tithes  as  are  capable  of  being 
set  out,  and  therefore  not  for  the  subtraction  of  agistment  tithe. 

Scarr  v.  Trinity  College,  Camb.,  3  Anst.  760 ;  Gwffl.  1445  ;  2  Eag.  &  Yo.  429. || 

An  action  is  not  by  the  express  words  of  the  statute  given  to  a  farmer 
of  tithes. 

But  it  has  been  holden,  that  as  every  farmer  of  tithes  has  a  right  to 
the  tithes,  the  remedy  given  by  the  statute  ought  to  be  extended  by 
equity  to  every  such  farmer. 

Moor.  915  ;  Day  v.  Peckwell,  Cro.  Ja.  70 ;  ||Gwill.  221 ;  1  Eag.  &  Y.  154 ;  Wy 
burd  v.  Tuck,  1  Bos.  &  Pul.  458. || 

An  executor  may  bring  an  action  upon  the  statute  for  subtraction  of 
tithe  due  to  his  testator ;  this  case  being  within  the  equity  of  the  4  E.  3, 
c.  7,  by  which  an  action  is  given  to  an  executor  for  the  goods  of  his  tes- 
tator, which  were  carried  away  during  the  life  of  his  testator. 

1  Yentr.  30  ;  Moreton's  case,  Sid.  407 ;  1  Yern.  60  ;  ||G\vill.  1578  ;  1  Eag.  &  Y. 
480.|| 

||  But  an  executor  cannot  recover  the  penalty  of  treble  value. 
Anon.,  1  Yern.  60;  Gwill.  532;  1  Eag.  &  Y.  540.||  * 

An  action  does  not  lie  upon  the  statute  against  an  executor ;  for  the 
treble  value  thereby  given  is  by  way  of  punishment  for  the  personal 
wrong ;  and  an  executor  is  not  answerable  for  a  personal  wrong  done  by 
his  testator. 

Sid.  181  ;  Weekes  v.  Trussel,  Sid.  407. 

In  an  action  upon  the  statute  against  Hancock  and  two  others,  the 
defendants  all  joined  in  the  plea  of  nil  debent.  The  verdict  was,  that 
Hancock  owed  eighteen  pounds ;  but  that  the  other  two  owed  nothing. 
It  was  moved  in  arrest  of  judgment,  that  the  action  ought  not  to  have 
been  a  joint  action  ;  but  after  great  debate  and  deliberation ;  the  court 
were  unanimously  of  opinion,  that  the  action  was  well  brought ;  for  that, 
as  it  is  founded  upon  a  tort  and  not  upon  a  contract,  one  of  the  defend- 
ants may,  as  is  frequently  done  in  other  actions  founded  upon  torts,  be 
found  guilty,  and  the  others  may  be  acquitted. 

Comb.  301,  Bastard  v.  Hancock  ;   ||1  Eag.  &  Y.  614.|| 

In  an  action  upon  the  statute,  the  plaintiff  declared  that  the  defendant 
was  occupier  of  the  land,  upon  which  the  tithe  arose,  from  the  tenth  day 
of  March,  for  the  space  of  six  months ;  that  in  the  August  following,  he 
cut  the  corn  growing  thereupon  ;  and  that  after  the  expiration  of  his  term, 
he  carried  away  the  corn  without  having  set  out  the  tenth  part  thereof. 
An  objection  was  taken,  that  it  appeared,  from  the  plaintiff's  own  show- 
ing, that  the  defendant  was  not  occupier  of  the  land  at  the  time  of  the  sup- 


94  TYTHES. 

(Dd)  Action  on  the  Statute  for  Subtraction  of  Tithes. 

posed  subtraction  of  the  tithe :  but  it  was  holden,  that  as  he  was  the 
owner  of  the  corn  at  that  time,  the  action  was  well  brought. 
Cro.  Ja.  324,  Kipping  v.  Swaine  ;  ||Gwill.  258  ;  1  Eag.  &  Y.  219. || 
It  is  not  necessary  for  the  person,  who  brings  an  action  upon  the  sta- 
tute, to  set  out  a  title  to  the  tithe  in  question ;  because,  as  the  action  is 
in  the  nature  of  an  action  of  trespass  founded  upon  a  tort,  it  is  sufficient 
to  show  a  possession  of  the  tithe  in  the  plaintiff. 
2  Lev.  1  ;  Cro.  Ja.  68,  361,  437  ;  1  Ventr.  126  ;  2  Bulstr.  67. 

||  Mere  evidence  of  an  incomplete  treaty  by  the  parishioners  with  a 
proprietor,  for  a  composition,  is  not  sufficient  to  establish  his  possession 
of  the  tithes  in  an  action  on  the  statute. 

Wyburd  v.  Tuck,  1  Bos.  &  P.  458. 

But  proof  of  payment  of  a  composition  by  the  parishioner  to  the  pro- 
prietor, in  the  preceding  year,  is  sufficient. 

Gamson  v.  Wells,  8  Taunt.  542. 

And  the  plaintiff's  title  to  the  tithes  cannot  be  disputed  after  a  general 
payment  of  money  into  court. 
Broadhurstv.  Baldwin,  4  Price,  58.  || 

If  a  certain  lease  of  the  tithe  be  declared  upon  in  an  action  upon  the 
statute,  and  the  jury  find  a  different  lease,  the  variance  is  not  fatal,  be- 
cause the  allegation  of  the  lease  is  only  inducement  to  the  action ;  the 
wrong  in  carrying  away  the  tithe  being  the  ground  thereof. 

Cro.  Ja.  328  ;  Wheeler  v.  Haydon,  2  Bulstr.  86  ;  ||Gwill.  258  ;  1  Eag.  &  Y.  219. 
If  one  only  of  two  joint-tenants  of  tithes  execute  an  assignment  of  alease  of  the  tithes, 
qu  if  the  person  claiming  under  such  lease  can  maintain  an  action  for  not  setting 
them  out.     See  Wyburd  v.  Tuck,  1  Bos.  &  Pul.  458 ;  Gwill.  1517.  || 

||  But  it  seems  that  a  lessee  and  farmer  must  not  state  himself  in  the 
declaration  as  owner  and  proprietor  of  the  tithes. 
Stevens  v.  Aldridgc,  5  Price,  334 ;  Gwill.  1865. 

It  is  necessary  for  the  person  who  brings  an  action  upon  the  statute 
to  show,  that  the  defendant  was  one  of  the  king's  subjects  at  the  time  of 
subtracting  the  tithe. 

Cro.  Ja.  324,  Kipping  v.  Swaine. 

But,  if  it  be  alleged  that  the  defendant  was  occupier  of  the  land  at  the 
time  of  subtracting  the  tithe,  it  is  well  enough ;  because  it  may  be  fairly 
inferred  that  he  was  one  of  the  king's  subjects  at  that  time. 

Ilardr.  173,  Phillips  v.  Kettle. 

The  declaration  in  an  action  upon  the  statute  must  show,  that  the  de- 
fendant had  made  no  agreement  with  the  plaintiff  for  the  tithe  before  he 
carried  it  away ;  for  the  statute  has  these  words,  or  otherwise  agreed  for 
the  mine  tithe. 

Cartb.  304,  Alston  v.  Buscougb,  Cro.  Ja.  70.  ||But  the  objection  was  held  to  bo 
cured  by  verdict ;  since,  if  an  agreement  had  been  shown,  the  plaintiff  could  not  have 
recovered.  But  micere  as  to  this  ;  and  see  Butt  v.  Howard,  4  Barn.  &  A.  655  ;  Gwill. 
2030;  :;  Eag.  &Y.  1061. || 

In  an  action  upon  the  statute,  the  plaintiff  declared  for  a  certain  quan- 
tity of  grain.  It  was  objected,  that  the  word  grain,  which  comprehends 
seeds  of  divers  sorts,  is  of  too  general  signification,  and  that  the  particu- 
lar kind  of  grain  ought  to  have  been  alleged:  but  the  declaration  was 
holden  to  be  good ;  for  that  the  word  grain  does,  in  its  usual  signification, 
mean  corn. 

Sty.  103,  108  ;  Southcot  v.  Southcot ;   ||Gwill.  884.|| 


TYTHES.  95 

(Dd)  Action  on  the  Statute  for  Subtraction  of  Tithes. 

It  is  sufficient,  in  an  action  upon  the  statute,  to  allege  the  value  ot  the 
whole  tithe  subtracted,  without  showing  the  quantity  or  value  of  the  par- 
ticular kinds  of  tithes. 

Cro.  Ja.  433,  Sanders  v.  Sanders. 

The  plaintiff  may  recover,  in  an  action  of  debt  upon  the  statute,  not- 
withstanding the  sum  found  by  the  verdict  be  less  than  the  sum  alleged 
in  his  declaration  to  be  due ;  for  although  it  be  in  the  general  true,  that 
the  plaintiff  cannot  recover,  in  an  action  of  debt,  a  less  sum  than  he  de- 
clares for,  he  may,  as  no  certain  penalty  is  given  by  the  statute,  recover 
in  this  action  the  value  of  the  tithes  subtracted. 
Cro.  Ja.  498,  Pemberton  v.  Shelton ;  ||  1  Eag.  &  Y.  297. || 

The  statute  of  limitations  cannot  be  pleaded  in  bar  to  an  action  upon 
the  statute,  because  the  occupier  is  considered  as  a  bailiff  or  receiver ; 
and  the  statute  of  limitations  is  no  bar  to  a  demand  upon  such  persons. 
Cro.  Car.  513  ;  Talory  v.  Jackson,  Bunb.  213. 

||  But  by  the  53  Gr.  3,  c.  127,  §  5,  it  is  enacted,  that  no  action  shall 
be  brought  for  the  recovery  of  any  penalty  for  the  not  setting  out  tithes ; 
nor  any  suit  instituted  in  any  court  of  equity,  or  in  any  ecclesiastical 
court,  to  recover  the  value  of  any  tithes,  unless  such  action  shall  be 
brought,  or  such  suit  commenced,  within  six  years  from  the  time  when 
such  tithes  became  due.|| 

The  more  proper  plea,  in  an  action  of  deot  upon  the  statute,  is  nil 
debet :  but  it  has  been  holden,  that  as  the  action  is  founded  upon  a  tort, 
not  guilty  is  a  good  plea. 

2  Inst.  051 ;  Moor,  914;  Cartb.  3G1. 

If  a  defendant,  against  whom  an  action  upon  the  statute  is  brought, 
would  avail  himself  of  a  modus  by  deed,  the  deed  must  be  pleaded ;  and 
the  deed  is  pleadable,  although  the  date  thereof  be  be3^ond  time  of  me- 
mory, and  it  was  not  allowed  in  a  court  of  eyre  ;  for  an  allowance  before 
justices  in  eyre  was  not  necessary  in  the  case  of  a  private  deed. 

2  Mod.  321,  322,  James  v.  Trollope;  ||  S.  C.  Pollex.  623;  Skin.  51,  239;  2  Show. 
439;  Eag.  &  Y.  532.]] 

A  prescription  in  non  decimando  cannot  be  pleaded  in  the  negative  to 
an  action  upon  the  statute ;  but  the  plea  must  be,  that  the  defendant, 
and  all  those  whose  estate  he  has,  have,  for  time  whereof  the  memory  of 
man  is  not  to  the  contrary,  enjoyed  the  premises  without  paying  tithe 
for  the  same. 

Bro.  Preset:  pi.  17. 

If  the  plea  to  an  action  upon  the  statute  be,  that  the  premises  of  which 
tithe  is  claimed  were  discharged  thereof  in  the  hands  of  an  abbot,  it  must 
be  shown  in  what  manner  they  were  discharged ;  for,  as  a  discharge  of 
tithes  is  against  common  right,  it  shall  be  intended,  unless  the  contrary 
appear,  that  the  discharge  was  personal. 

1  Jo.  G  ;  Slade  v.  Drake,  1  Lev.  185  ;  ||  Gwill.  394 ;  1  Eag.  &  Y.  320.]| 

If  a  discharge  of  tithe,  by  reason  of  unity  of  possession  in  the  hands 
of  an  abbot  and  his  successors,  be  pleaded  to  an  action  upon  the  statute, 
the  unity  of  possession  is  traversable. 

Cro.  Eliz.  584,  Button  v.  Long. 


96  TYTHES. 

(Ee)  Of  Recovering  the  Value  of  small  Tithes  subtracted. 

In  an  action  upon  the  statute,  the  plaintiff  was  not  heretofore  in  any 
case  entitled  to  costs  of  suit. 

2  Inst.  G51. 

But  by  the  8  &  9  W.  3,  c.  11,  §  3,  it  is  enacted,  "That  in  all  actions 
of  debt  upon  the  2  &  3  E.  6,  c.  13,  wherein  the  single  value  found  by  the 
jury  shall  not  exceed  the  sum  of  twenty  nobles,(a)  the  plaintiff  obtaining 
judgment,  or  any  award  of  execution,  after  plea  pleaded  or  demurrer 
joined  therein,  shall  recover  his  costs  of  suit." 

||(a)  6Z.  13s.  4cZ.|| 

||  The  language  of  this  statute  does  not  apply  to  a  case  where  the  de- 
fendant suffers  judgment  by  default.  In  a  case  where  the  declaration 
contained  counts  for  the  treble  value,  for  tithes  bargained  and  sold,  and 
on  an  account  stated,  and  the  defendant  suffered  judgment  by  default, 
and  the  jury  assessed  the  plaintiff's  damages  at  £171,  4s.  Qd.  on  the 
count  for  treble  value,  and  £9  for  single  value  on  the  other  counts,  but 
omitted  to  find  costs ;  the  court  ordered  the  return  of  the  inquisition  to 
be  amended,  by  inserting  nominal  damages  as  to  the  last  counts,  on 
which  costs  de  incremento  might  be  added. 

Ball  v.  Hodo-etts,  1  Bing.  182 ;  7  Moo.  602  ;  Eag.  &  You.  1089  ;  and  see  Barnard 
v.  Moss,  1  H.  Bl.  107  ;  2  Eag.  &  You.  357.|| 

It  has  been  holden,  that  the  defendant,  in  an  action  upon  the  statute, 
is  not  entitled  to  costs ;  because  as  the  action  is  not  an  action  of  debt 
upon  a  specialty,  nor  an  action  for  a  personal  wrong  done  immediately 
to  the  plaintiff,  the  wrong  in  this  case  arising  from  a  non-feasance  and 
not  from  a  mal-feasance,  it  is  not  within  the  meaning  of  the  23  II.  8,  c. 
15,  by  which  costs  are  in  divers  cases  given  to  a  defendant. 

2  Inst,  651. 

But  by  the  8  &  9  W.  3,  c.  11,  §  3,  it  is  enacted,  "That  if  the  plaintiff, 
in  any  action  of  debt  upon  the  2  &  3  E.  6,  c.  13,  shall  become  nonsuit, 
or  suffer  a  discontinuance,  or  a  verdict  shall  pass  against  him,  the  de- 
fendant shall  recover  his  costs  of  suit." 

(Ee)  Of  Recovering  in  a  summary  Way  the  Value  of  small  Tithes  subtracted. 

By  the  7  &  8  W.  3,  c.  G,  §  1,  it  is,  for  the  more  easy  recovery  of  small 
tithes,  where  the  same  do  not  amount  to  above  the  yearly  value  of  forty 
shillings  from  any  one  person,  enacted,  "That  if  any  person  shall  subtract 
or  withdraw,  or  fail  in  the  payment  of  such  small  tithes,  by  the  space  of 
twenty  days  after  demand  thereof,  that  then  it  shall  be  lawful  for  the 
person,  to  whom  the  same  shall  be  due,  to  make  his  complaint  in  writing 
to  any  two  justices  of  the  peace  within  the  county  or  place  where  the  same 
shall  grow' due;  neither  of  which  justices  is  to  be  patron  of  the  church 
whence  the  said  tithes  arise,  or  any  ways  interested  in  such  tithes." 

But  by  §  G  it  is  provided,  "That  no  complaint  shall  be  heard  as  afore- 
said, unless  it  shall  be  made  within  two  years  after  the  same  tithes  be- 
come due." 

And  by  §  13  it  is  provided,  "That  no  person,  who  shall  begin  any 
suit  for  the  recovery  of  such  small  tithes  in  the  Court  of  Exchequer,  or 
in  any  ecclesiastical  court,  shall  have  any  benefit  of  this  act  for  the  same 
matter." 

P>y  §  2  it  is  enacted,  "That  the  said  justices  shall  summon  in  writing 
under  their  hands  and  seals,  by  reasonable  warning,  every  person  against 


TYTHES.  97 

(Ee")  Of  recovering  the  Value  of  small  Tithes  subtracted. 

whom  any  complaint  shall  be  made  as  aforesaid,  and  after  his  appearance, 
or  upon  default  of  appearance,  the  said  warning  being  proved  before  them 
upon  oath,  the  said  justices  shall  proceed  to  hear  and  determine  the  said 
complaint,  and  shall  in  writing  under  their  hands  and  seals  adjudge  the 
case,  and  five  such  reasonable  allowance  for  such  tithes  as  they  shall  juuge 
to  be  just,  and  also  such  costs  and  charges,  not  exceeding  ten  shillings,  as 
upon  the  merits  of  the  cause  shall  appear  just." 

And  by  §  4,  the  justices  are  empowered  to  administer  an  oath  to  any 
witness  produced. 

But  by  §  8  it  is  enacted,  "  That  if  any  person  complained  against  shall 
insist  upon  any  prescription,  composition,  modus  decima?idi,  or  other  title 
whereby  he  ought  to  be  discharged  of  tithes ;  and  shall  deliver  the  same 
in  writing  to  the  said  justices;  and  shall  give  to  the  party  complaining 
sufficient  security,  to  pay  all  such  costs  as  shall  be  given  against  him  upon  a 
trial  at  law,  in  case  the  said  title  shall  not  be  allowed ;  that  then  the  said 
justices  shall  forbear  to  give  judgment." 

By  §  3,  "A  distress  is  given,  in  case  of  refusal  or  neglect,  by  the  space 
often  days  after  notice  given  to  pay  such  sum  as  upon  such  complaint  shall 
be  adjudged  as  aforesaid." 

By  §  12  it  is  enacted,  "  That  the  said  justices  shall  have  power  to  give 
costs,  not  exceeding  ten  shillings,  to  the  party  prosecutedy  if  they  find  the 
complaint  false  and  vexatious." 

By  §  5  it  is  provided,  "  That  this  act  shall  not  extend  to  tithes  within 
the  city  of  London,  or  in  any  other  place  where  the  same  are  settled  by 
act  of  parliament." 

By  §  7,  an  appeal  is  given  to  the  sessions,  and  it  is  moreover  enacted, 
"  That  if  the  justices  there  present,  or  the  majority  of  them,  shall  confirm 
the  judgment  of  the  two  justices,  they  shall  decree  the  same  by  order  of 
sessions,  and  proceed  to  give  such  costs  against  the  appellant  as  to  them 
shall  seem  just  and  reasonable." 

By  the  same  section  it  is  enacted,  "  That  no  proceeding  or  judgment, 
had  by  virtue  of  this  act,  shall  be  removed  or  superseded,  by  any  writ 
of  certiorari,  or  other  writ  out  of  his  majesty's  courts  at  Westminster,  or 
any  other  court  whatsoever,  unless  the  title  to  such  tithes  shall  be  in 
question." 

||By  the  53  G.  3,  c.  127,  two  or  more  justices  are  authorized  to  deter- 
mine all  complaints  touching  tithes,  oblations,  and  compositions  subtracted, 
where  the  same  shall  not  exceed  ten  pounds  in  amount,  in  all  such  cases 
and  by  all  such  means,  and  subject  to  such  provisions  and  remedies,  by 
appeal  or  otherwise,  as  are  contained  in  the  7  &  8  W.  3,  c.  6,  respecting 
tithes  not  exceeding  forty  shillings  ;  and  one  justice  shall  be  competent  to 
receive  the  original  complaint  and  summon  the  parties  to  appear  before 
two  or  more  justices. 

A  party  summoned  under  the  above  acts,  and  who  resists  the  payment 
of  tithe  on  the  ground  of  modus,  under  the  eighth  section  of  the  7  &  S  W. 
3,  c.  6,  must  set  up  the  modus  before  the  justices  in  the  first  instance  ;  and 
if  he  neglect  to  do  so,  and  an  order  is  made  by  the  justices,  he  cannot  on 
appeal  to  the  sessions  give  evidence  of  the  modus ;  and  it  would  seem  that 
the  eighth  section  takes  away  from  the  justices  the  power  of  trying  a  ques- 
tion of  modus  in  any  case. 

Rex  v.  Jeffreys,  1  Bam.  &  C.  604  ;  9  Dow.  &  Ry.  860 ;  Gwill.  2065.| 

Vol.  X.— 13  I 


98  TYTHES. 

(Ff )  Of  recovering  Tithes  due  from  Quakers. 

By  the  7  &  8  W.  3,  c.  34,  §  4,  it  is  enacted,  "  That  where  any  Quaker 
shall  refuse  to  pay  or  compound  for  his  great  or  small  tithes,  it  shall  be 
lawful  for  the  two  next  justices  of  the  peace  of  the  same  county,  other  than 
such  justice  of  the  peace  as  is  patron  of  the  church  or  chapel  to  which  the 
said  tithes  belong,  or  any  ways  interested  in  the  said  tithes,  upon  the  com- 
plaint of  the  person  who  ought  to  have  and  receive  the  same,  by  warrant 
under  their  hands  and  seals  to  convene  before  them  such  Quaker,  and  to 
examine  upon  oath,  which  oath  the  said  justices  are  empowered  to  adminis- 
ter, or  iu  such  manner  as  by  this  act  is  provided,  the  truth  and  justice  of 
the  said  complaint,  and  to  ascertain  what  is  due  from  such  Quaker  to  the 
party  complaining,  and  by  order  under  their  hands  and  seals  to  direct  the 
payment  thereof,  so  as  the  sum  ordered  as  aforesaid  do  not  exceed  <£10 ; 
and  upon  refusal  by  such  Quaker  to  pay  according  to  such  order,  it  shall 
be  lawful  for  any  one  of  the  said  justices,  by  warrant  under  his  hand  and 
seal,  to  levy  the  money  thereby  ordered  to  be  paid,  by  distress  and  sale 
of  the  goods  of  such  offender." 

By  the  same  section  i:  is  enacted,  "  That  any  person  finding  himself 
aggrieved  by  any  Judgment  given  by  such  two  justices  of  the  peace,  may 
appeal  to  the  next  general  quarter-sessions,  and  the  justices  of  the  peace 
there  present,  or  the  major  part  of  them,  shall  proceed  finally  to  hear  and 
determine  the  matter;  and  if  the  justices  then  present,  or  the  major  part 
of  them,  shall  find  cause  to  continue  the  said  judgment,  they  shall  then 
decree  the  same  by  order  of  sessions,  and  shall  proceed  to  give  such  costs 
against  the  appellant  as  to  them  shall  seem  just  and  reasonable." 

And  bv  the  same  section  it  is  enacted,  "That  no  proceeding  or  judg- 
ment, had  by  virtue  of  this  act,  shall  be  removed  or  superseded  by  any 
writ  of  certiorari,  or  other  writ,  out  of  his  majesty's  courts  at  Westminster, 
or  any  other  court  whatsoever,  unless  the  tide  to  such  tithes  shall  be  in 
question." 

By  the  1  G.  1,  st.  2,  c.  6,  §  2,  the  like  remedy  is  given  for  the  recovery 
of  all  tithes,  and  all  other  ecclesiastical  dues,  from  Quakers,  as  is  by  the 
7  &  S  W.  3,  c.  34,  given  for  tithes  to  the  value  often  pounds. 

And  it  is  thereby  further  enacted,  "  That  any  two  or  more  justices  of 
the  peace  of  the  same  county  or  place,  other  than  such  justice  as  is  patron 
of  the  church  or  chapel  to  which  the  said  tithes  or  dues  belong,  or  any  ways 
interested  in  ih  ■  said  tidies,  upon  complaint  of  any  parson,  vicar,  curate, 
farmer,  or  proprietor  of  such  tidies,  or  other  person  who  ought  to  have, 
receive,  or  collect  any  such  tithes  or  due-;,  are  hereby  required  to  summon 
in  writing  under  their  hands  and  seals,  by  reasonable  warning,  such  Quaker 
or  Quakers  against  whom  such  complaint  shall  be  made;  and  after  his  or 
their  appearance,  or  upon  default  of  appearance,  the  said  warning  or  summons 
being  proved  before  them  upon  oath,  to  proceed  to  hear  and  determine  the 
said  complaint,  and  to  make  such  order  therein  as  in  the  said  act  is  limited 
or  directed  ;  and  also  to  order  such  costs  and  charges,  not  exceeding  ten 
shillings,  as  upon  the  merits  of  the  cause  shall  appear  just;  which  order 
shall  and  may  he  appealed  to,  and  on  such  appeal  may  be  reversed  or 
affirmed  by  the  general  quarter-sessions  of  the  county  or  place,  with  such 
costs  and  remedy  for  the  same,  and  shall  not  be  removed  into  any  other 
court,  unless  the  title  to  such  tithes  shall  be  in  question,  in  like  manner  as 
in  and  by  the  7  &  8  W.  3,  c.  34,  is  limited  and  provided." 

||  By  the  53  G.  3,  c.  127,  §  6,  the  provisions  of  the  two  statutes  7  &  8 


TYTHES.  99 

(Gg)  What  Remedy  an  Occupier  has,  &c. 

W.  3,  c.  34,  §  4,  and  1  G.  1,  stat.  2,  c.  6,  §  2,  are  extended  to  any  value 
not  exceeding  fifty  pounds;  and  one  justice  is  made  competent  to  receive 
the  original  complaint,  and  summon  the  parties  to  appear  before  two  or 
more  justices.  || 

(Gg)  What  Remedy  an  Occupier  has,  when  the  Person  entitled  to-Tithe  does  not 
fetch  it  away  in  a  reasonable  Time. 

If  the  person  entitled  to  the  tithe  of  milk  do  not  fetch  it  away  before 
the  next  milking-time,  the  parishioner  may  pour  it  upon  the  ground  ;  be- 
cause he  may  then  have  occasion  for  the  pail,  or  other  vessel,  in  which  it 
was  set  out. 

Bunb.  73,  Dodson  v.  Oliver. 

Although  a  predial  tithe  be  not  fetched  away  in  a  reasonable  time  by 
the  person  entitled  thereto,  the  occupier  of  the  land,  upon  which  it  is  set 
out,  cannot  justify  the  distraining  thereof  damage-feasant ;  but  he  may 
have  an  action  for  the  damage  sustained  by  its  lying  too  long  upon  the 
land. 

3  Bulstr.  337,  Mountford  v.  Sidley ;  Latch,  8.     flSee  8  Term  R.  72.|| 

The  occupier  of  the  land,  upon  which  tithe  is  set  out,  cannot  justify  the 
putting  of  his  cattle  upon  the  land,  before  the  tithe  is  fetched  away ;  for  it 
is  probable,  that  the  person  entitled  thereto  would  sustain  more  damage  be- 
having his  tithe  destroyed  by  the  cattle,  than  the  occupier^  would  by  being 
deprived  for  some  time  of  the  use  of  his  land :  and  it  is  much  more  rea- 
sonable to  leave  the  occupier  to  his  remedy  by  action,  than  to  suffer  him 
to  judge  when  the  tithe  has  lain  there  too  long. 

Ld.  Raym.  187,  Shapcott  v.  Mugford,  (2d  edit.,)  1765;  Ld.  Raym.  198;  Shapcott 
v.  Mugford,  Com.  24. 

||  This  doctrine  is  confirmed  by  a  modern  case,  in  which  Lord  Kenyon 
also  said  that  the  occupier  might  distrain  the  tithes  damage-feasant. 
Williams  v.  Ladner,  8  Term  R.  72;  and  see  Baker  v.  Leathes,  Wightw.  113.|| 

But,  if  the  person  entitled  thereto  have  neglected  to  fetch  away  tithe  in  a 
reasonable  time,  and  cattle,  either  of  the  occupier  of  the  land  upon  which 
the  tithe  is  set  out,  or  of  a  stranger,  do  without  the  default  of  the  occupier 
come  upon  the  land,  and  destroy  the  tithe,  the  loss  must  fall  upon  the  per- 
son who  neglected  to  fetch  it  away. 

2  Leon.  101,  Bennet  v.  Shortwright;  Cro.  Eliz.  206. 

An  action  of  trespass  does  not  lie  against  the  person  entitled  to  tithe  for 
not  having  fetched  it  away  in  a  reasonable  time ;  because  the  injury  to 
the  occupier  of  the  land  does  not  arise  from  a  mal-feasance  but  from  a  non- 
feasance. 

Latch,  8,  Stilman  v.  Chanot;  Ld.  Raym.  189. 

But  the  remedy  of  the  occupier  of  the  land,  in  case  the  tithe  be  not 
fetched  away  in  a  reasonable  time,  is  by  an  action  upon  the  case. 

3  Bulstr.  337;  Mountford  v.  Sidley,  Latch,  8;  Ld.  Raym.  188. 

An  action  for  not  having  fetched  away  tithe  in  a  reasonable  time  doe& 
not  lie,  unless  the  tithe  were  set  out  by  a  person  who  had  some  colour  of 
title  to  the  land  upon  which  it  arose  ;  because,  as  the  severance  of  tithe  bf 
«  stranger  does  not  vest  such  a  property  in  the  person  entitled  thereto,  as 
to  enable  him  to  maintain  an  action  against  a  person  who  afterwards  carries 
it  away,  it  is  not  reasonable  that  he  should  be  liable  to  an  action  for  not 
having  fetched  it  away. 

3  Bulstr.  337,  Mountford  v.  Sidley ;  Latch,  8. 


100  TYTHES. 

(Gg)  What  Remedy  an  Occupier  has,  &c. 

Before  the  occupier  of  the  land  can  maintain  an  action  against  the  person 
entitled  thereto  for  not  having  fetched  away  tithe  in  a  reasonable  time,  he 
must  give  notice  of  its  being  set  out;  because,  as  the  former  was  not 
obliged  to  give  notice  at  what  time  he  intended  to  set  the  tithe  out,  the 
latter  may  not  know  that  it  is  set  out. 
IRoll.Abr.  643,  (X),  pi.  1. 

|| The  notice  that  the  tithes  are  set  out,  and  requiring  the  parson  to  fetch 
them  away,  must  be  reasonable  according  to  the  circumstances.  Where 
due  notices  were  given  to  the  parson  of  the  setting  out  of  the  tithe  of  fruit 
and  vegetables  in  a  garden,  which  were  accordingly  set  out ;  and  the  tithes 
not  having  been  removed  at  the  distance  of  a  month  afterwards,  when 
they  had  become  rotten,  a  notice  then  given  to  remove  the  tithe  fruits  and 
vegetables  within  two  days,  otherwise  an  action  would  be  commenced 
against  the  parson,  was  held  sufficient  notice  whereon  to  found  an  action. 

Kemp  v.  Filewood,  11  East,  358;  Gwill.  1649. 

The  action  for  not  removing  tithes  will  lie  not  only  where  the  tithes 
have  been  set  out  in  the  mode  prescribed  by  the  common  law,  or  by  the 
special  custom  of  the  place,  but  also  where  they  have  been  set  out  in  a  par- 
ticular manner  agreed  on  by  the  tithe-owner  and  the  farmer. 

Facey  v.  Hurdom,  3  Bam.  &  C.  213;  5  Dow.  &  Ry.  68;  3  Eag.  &  You.  1172;  and 
see  Pigott  v.  Bayley,  6  Barn.  &  C.  16. 

If  there  is  no  "special  custom  or  private  agreement,  the  action  cannot  be 
maintained,  unless  the  tithes  are  set  out  according  to  common  law. 

Moyes  v.  Willett,  3  Esp.  Ca.  31 ;  Gwill.  1526  ;  and  see  Hooper  v.  Mantle,  1  M'Clel. 
388;  Eag.  &  You.  1162.|| 

And  after  the  person  entitled  thereto  has  had  notice  of  tithe  being  set 
out,  he  must,  before  an  action  can  be  maintained  against  him  for  not 
having  fetched  the  tithe  away,  have  a  reasonable  time  to  fetch  it  away  ; 
and  the  question,  What  is  a  reasonable  time  ?  is  proper  for  the  determina- 
tion of  a  jury. 

3  Bulstr.  336,  Mountford  v.  Sidley;  Bro.  Dism.  pi.  12;  Ld.  Raym.  189;  Str.  245, 
246,  South  v.  Jones ;  (JFacey  v.  Hurdom,  3  Barn.  &  C.  213;  5  Dow.  &  Ry.  68;  Eag. 
&  You.  1172.U 


> 


101 


UNIVERSITIES. 


(A)  Universities,  what. 

(B)  Of  their  Courts  and  Privileges  of  Jurisdiction.     Wherein, 

1.  How  they  are  to  demand  Conusance. 

2.  By  whom  it  may  be  demanded. 

3.  At  what  time  it  may  be  demanded. 

(C)  Of  their  Privileges  with  regard  to  their  Right  of  Presentation  to  the  Livings  of 

Papists.     Wherein, 

1.  In  what  cases  they  shall  present. 

2.  Whom  they  shall  present. 

3.  How  their  Right  of  Presentation  may  be  prevented. 

4.  How  Trusts  made  to  prevent  their  Eight  of  Presentation  may  be  discovered. 

5.  How  their  Right  of  Presentation  may  be  divested. 

6.  How  it  may  be  avoided. 


(A)  Universities,  what. 

By  universities  in  general,  we  understand  those  seminaries  of  learning 
where  youth  are  sent  to  finish  their  education,  and  to  be  instructed  in  the 
liberal  sciences.  With  us,  by  universities,  are  more  particularly  denoted 
those  two  learned  bodies  of  Oxford  and  Cambridge,  which  are  invested 
with  several  peculiar  privileges. 

[It  is,  indeed,  from  their  being  invested  with  such  privileges,  or  rather, 
from  their  being  incorporated,  (for  they  would  not  otherwise  be  capable  of 
receiving  them,)  that  they  were  called  Universities;   Universitas  being  the 
proper  Latin  word  for  a  corporation.     Considered  as  corporations,  these 
learned  bodies  are  merely  the  creatures  of  the  crown.     The  power  of  grant- 
ing degrees  flows  from  that  source ;  for,  if  the  crown  erects  an  university, 
the  power  of  conferring  degrees  is  incident  to  the  grant ;  and  in  point  of 
fact,  they  never  affected  to  confer  degrees  till  they  were  incorporated. 
They  were  formerly  considered  as  ecclesiastical,  or  at  least  as  clerical,  cor- 
porations ;  for  they  were  composed  chiefly  of  ecclesiastics,  and  denominatio 
sumenda  a  majori ;  and  they  had,  as  ecclesiastical  bodies,  ab  initio  ecclesi- 
astical jurisdiction.     Hence  the  claim  of  the  Archbishop  of  Canterbury  to 
\  isit  them  jure  metropolitico,  which  was  allowed  in  the  reigns  of  R.  2,  H. 
4,  and  Car.  1,  and  established  by  parliament  in  the  reign  of  H.  4.     It  is 
now  settled,  however,  that  they  are  merely  lay  corporations,  and  as  such, 
subject  to  no  visitation,  properly  so  called  ;  the  appeal,  if  any  one  feels 
himself  aggrieved,  being  to  the  Court  of  King's  Bench  ;  which  court,  as  its 
judgments  are  revisable  by  the  Lords  in  Parliament,  seems  to  want  that 
definitiveness  of  sentence  which  is  essential  to  visitatorial  power.     The 
universities  being  bodies  corporate  by  prescription,  it  follows,  that  it  is  not 
competent  to  the  crown,  of  itself,  and  without  their  consent,  to  make  any 
innovations  in  their  constitution,  or  to  abridge  any  of  those  rights  which 


102  UNIVERSITIES. 

(B)  Of  their  Courts  and  Privileges  of  Jurisdiction. 

the)  enjoy  either  by  prescriptive  usage  or  under  old  charters;  and  that  they 
may,  like  other  civil  corporations  under  these  circumstances,  accept  a  new 
charter,  in  part  and  upon  such  terms  as  they  may  think  proper. 

See  Sir  P.  Yorke's  argument,  1  Burn's  P.  L.  420.     See  also  8  Mod.  163;  3  Burr. 
1656;  1  Bl.  R.  517;  1  Bl.  Com.  481.] 

(B)  Of  their  Courts  and  Privileges  of  Jurisdiction. 

Each  of  the  universities  had  several  powers  and  privileges  by -charters 
from  the  kings  of  this  realm,  particularly  one  in  the  eighth  of  Hen.  4,  where- 
by they  were  authorized  to  hold  plea  of  all  causes  arising  within  the  uni- 
versity according  to  the  course  of  the  civil  law :  but  in  the  opinion  of  all 
the  judges  of  England  the  grant  was  held  not  to  be  good;  for  that  the  king 
could  not  by  his  grant  alter  the  law  of  the  land. '  To  remedy  this  and  other 
defects  respecting  their  powers  and  privileges,  a  special  act  of  parliament 
was  made  in  the  13  Eliz.,  confirming  all  former  letters  patent,  and  all  nlan- 
ner  of  liberties,  franchises,  &c,  which  they  had  held,  or  of  right  ought  to 

have  enjoyed,  &c. 

4  Inst."  227;  Godb.  201,  pi.  287;  Archbishop  of  York  v.  Sedwick. 

By  letters  patent  (not  confirmed  by  parliament)  dated  thirtieth  March, 
11  Car.  1,  granted  to  the  University  of  Oxford,  their  old  privileges  are  ex- 
plained, and  larger  granted. 

1  Mod.  164,  Magdalen  College  case;  Wood's  Inst.  548. 

Their  courts  are  called  the  Chancellors'  Courts.  The  chancellors  are 
usually  peers  of  the  realm,  and  are  appointed  over  the  whole  university. 
But  their  courts  are  kept  by  their  vice-chancellors,  their  assistants,  or  depu- 
ties :  the  causes  are  managed  by  advocates  or  proctors. 

1  Mod.  164.  By  charter  of  14  Hen.  8,  The  Chancellor,  his  commissary,  and  his 
deputy,  that  is,  the  pro-vice-chancellor,  are  justices  of  the  peace  for  the  vill  of  Oxon, 
county  of  Oxon  and  Berks;  and  their  authority  does  not  depend  on  the  common  com- 
mission only,  they  being  justices  of  the  peace  by  virtue  of  their  offices. 

These  courts  have  jurisdiction  in  all  causes  ecclesiastical  and  civil  (ex- 
cept mayhem,  (a)  felony,  and  freehold,)  where  a  scholar,  servant,  or  minis- 
ter of  the  university  is  one  of  the  parties  in  suit. 

1  Mod.  161,  and  Cro.  Car.  73,  Wilcocks  v.  Bradell.  But  see  the  petition  against  the 
grant  of  Hen.  I,  in  Prinn's  Animad.  p.  368,  369.  («)[The  trial  of  treason,  felony,  and 
mayhem,  is  committed  in  both  universities  to  the  university-jurisdiction  in  another  court; 
namely,  the  court  of  the  Lord  High  Steward  of  the  university.  The  cognisance  of 
offences  of  this  nature  has  not  been  claimed  by  this  court  in  either  university  for  many 
years,  though  instances  have  unhappily  occurred  in  which  the  claim  might  have  been 
made.] 

Their  proceedings  are  in  a  summary  way,  according  to  the  practice  of  the 
civil  law;  and  in  their  sentences  they  follow  the  justice  and  equity  of  the 
civil  law,  or  the  laws,  statutes,  privileges,  liberties,  and  customs  of  the  uni- 
versities, or  the  laws  of  the  land,  at  the  discretion  of  the  chancellor. 

Cro.  Car.  73,  Wilcocks  v.  Bradell  ;  lletley,  25,  Thomas  Wilcock's  case;  Hard. 
508,  Castle  v.  Litchfield. 

If  there  be  an  erroneous  sentence  in  the  chancellors' court  of  the  Univer- 
sity ot  Oxford,  an  appeal  lies  to  the  congregation,  thence  to  the  convoca- 
tion, and  from  thence  to  the  king  in  Chancery,  who  nominates  judges  dele- 
gates to  hear  the  appeal. (b)  The  appeal  is  of  the  same  nature  in  Cam- 
bridge, (c) 

Wood's  Inst.  519  ;  2  Ld.  Raym.  1346,  The  King  v.  The  Chancellor,  &c,  of  Cam 
bridge.      [(6)  According  to  Sir  Win.  Blackstone,  the  appeal  in  Uie  first  instance  is  to 


UNIVERSITIES.  103 

(B)  Of  their  Courts  and  Privileges  of  Jurisdiction. 

delegates  appointed  by  the  congregation;  thence  to  other  delegates  of  the  house  of 
convocation;  and  if  they  all  three  concur  in  the  same  sentence,  it  is  final,  at  least  by  the 
statutes  of  the  university,  according  to  the  rule  of  the  civil  law.  But,  if  there  be  any 
discordance  or  variation  in  any  of  the  three  sentences,  an  appeal  lies  in  the  last  resorl 
to  judges  delejntes  appointed  by  the  crown  under  the  great  seal  in  Chancery.  3  Bl. 
Comm.  85.  (c)The  appeal  from  the  vice-chancellor's  court  in  Cambridge  is  to  certain 
delegates  appointed  by  the  senate;  but  the  editor  is  informed,  that  from  the  sentence 
of  these  delegates  there  is  no  appellate  university-jurisdiction.] 

As  by  charter  confirmed,  as  above  mentioned,  by  act  of  parliament,  cog- 
nisance is  granted  to  the  university  of  all  suits  arising  anywhere  in  law  or 
equity  against  a  scholar,  servant,  or  nii/iisfer  of  the  university,  depending 
before  the  justices  of  the  King's  Bench,  Common  Pleas,  and  others  there 
mentioned,  and  before  any  other  judge,  though  the  matter  concern  the  king: 
if  an  indebitatus  assumpsit  is  brought  by  quo  minus  in  the  Exchequer  against 
a  scholar  or  other  privileged  person,  the  university  shall  have  conusance  ; 
for  the  Court  of  Exchequer  is  included  in  the  general  words. 

Cro.  Car.  73,  Wilcocks  v.  Bradell ;  Hard.  505,  508,  Castle  v.  Litchfield.  There  is 
some  disagreement  in  the  books  as  to  the  recital  of  this  charter;  in  Cro.  Car.  they  are 
said  to  have  'conusance,  ita  qund  justiciarii  dc  banco  regis  sivede  communi  banco,  veljusti- 
ciarii  de  assists  rum  sc  intromittant.  In  Hard,  it  is  said  that  conusance  is  given  them  of 
all  suits,  &c,  depending  before  the  justices  of  the  King's  Bench,  Common  Pleas,  and 
others  there  mentioned,  and  before  any  other  judge,  though  the  matter  concern  the 
king.  These  latter  words  would,  no  doubt,  warrant  the  resolution  in  the  case  of  Castle 
v.  Litchfield  ;  for  it  is  said,  that  no  charter  of  exemption  shall  be  allowed  without  these 
or  the  like  words,  licet  tangat  nos.  But  see  Hardr.  189,  where  it  is  affirmed,  that  the 
exemption  granted  to  the  university  hath  not  these  words,  licet  tangat  nos.  And  see  t'-° 
following  authorities,  by  which  it  is  held,  in  opposition  to  the  ease  of  Castle  v.  Litch- 
field, That — 

If  a  debtor  and  accountant  to  the  king  sues  a  scholar  by  bill  in  equit"  in 
the  Exchequer,  or  if  an  attorney  sues  a  scholar  by  writ  of  privilege,  an1 
universities  shall  not  have  conusance ;  for  a  general  grant  shall  not  take 
away  the  special  privilege  of  any  court. 

Hard.  189  ;  Wilkins  v.  Shalcroft,  Lit.  R.  304;  Oxford  Letters  Patent,  S.  P. ;  3  Leon. 
149;  The  Lord  Anderson's  case,  2  Danv.  Abr.  164-  || Welles  v.  Trahern,  Willes,  R. 
233.|| 

But  in  cases  where  privilege  is  allowable,  a  scholar,  &c,  cannot  waive 
his  privilege,  and  have  a  prohibition  in  the  courts  of  Westminster,  for  the 
university  by  right  has  the  conusance  of  the  plea,  where  one  is  a  privileged 
person  ;  and  a  stranger  is  forced  to  sue  a  privileged  person  in  their  courts 
by  reason  of  that  right  vested  in  them. 

Cro.  Car.  73,  Wilcocks  v.  Bradell ;  Hetl.  28,  Thomas  Wilcock's  case.  This  privi- 
lege was  granted  to  scholars  that  their  studies  might  not  be  interrupted  by  their  being 
forced  to  attend  suits  in  other  courts. 

But  a  scholar  ought  to  be  resident(a)  in  the  university  at  the  time  of  the 

suit  commenced,  and  no  other  ought  to  be  joined  in  the  action  with  him  ; 

for  in  such  cases  he  shall  not  have  privilege. 

Hetl.  28,  Thomas  Wilcocks'e  case,  [(a)  Actual  residence  must  be  certified  by  the 
chancellor,  Hayes  v.  Long,  2  Wils.310;  and  his  certificate  must  be  supported  by 
affidavit.  Paternoster  v.  Graham,  2  Stra.  810;  1  Ld.  Raym.  428,  S.  C;  Boot  v.  Gra- 
ham, 1  Barnardist.  K.  B.  49,  65.]      IJSee  Thornton  v.  Ford,  15  East,  634.  || 

Though  it  is  said  that  servants  of  the  university  are  privileged,  yet  it 
.has  been  holden,  that  a  bailiff  of  a  college  was  not  capable  of  privilege. 
Brownl.  74,  Carrell  v.  Paske. 

jJBut  the  claim  was  allowed  when  it  was  made  on  behalf  of  a  proctor, 
a  pro-proctor,  and  tire  marshal  of  the  university,  though  the  affidavit  of  the 


104  UNIVERSITIES. 

(B)  Of  their  Courts  and  Privileges  of  Jurisdiction. 

latter,  describing  him  as  of  a  parish  in  the  suburbs  of  Oxford,  only  verified 
that  he  then  was  and  had  for  fourteen  years  been  a  common  servant  of  the 
university  called  marshal,  and  that  he  was  sued  for  an  act  done  by  him  in 
discharge  of  his  duty,  and  in  obedience  to  the  orders  of  the  other  two  de- 
fendants, without  stating  that  he  resided  in  the  university  or  was  matri- 
culated. 

Thornton  v.  Ford,  15  East,  634. || 

Neither  is  a  townsman  entitled  to  privilege,  to  exempt  him  from  an 
office  in  the  town,  if  he  keeps  a  shop  and  follows  a  trade,  though  he  is 
matriculated  as  servant  to  a  scholar. (a) 

2  Vent.  106,  The  City  of  Oxford's  case.  [(«)  That  a  townsman  so  circumstanced 
was  not  entitled  to  the  privileges  of  the  university,  this  case  did  not  determine;  for  the 
decision  turned  upon  the  matriculation  having  been  collusive,  merely  for  the  purpose 
of  procuring  an  exemption  from  a  corporate  office.  And  it  has  been  lately  adjudged, 
that  a  college  barber  at  Oxford,  though  he  resides  in  the  city  out  of  the  college,  is  en- 
titled to  the  privileges  of  the  university.     Rex  v.  Rowledge,  Dougl.  531.] 

It  is  to  be  observed,  that  though  mayhem,  felony,  and  freehold  appear 
as  above  to  be  the  only  causes  excepted  in  the  charter,  yet  it  has  been 
held,  that  in  actions  for  the  recovery  of  the  possession  of  a  term,  without 
claiming  title  to  the  freehold,  they  shall  have  no  privilege,  because  the 
freehold  may  come  in  question. 

Cro.  Car.  87,  88,  Hayley's  case ;  Litt.  R.  252,  Cripps  v.  Webb's  case. 

[Although  the  charter  of  the  university  extends  to  actions  arising  in  any 
part  of  England,  yet  it  cannot  intend  that  scholars,  as  plaintiffs,  shall  have 
the  liberty  of  suing  in  the  university  in  causes  of  action  arising  in  any  part 
of  England  ;  but,  when  they  are  defendants,  this  privilege  extends  all  over 
England. 

Per  Lord  Camden,  2  Wils.  311.] 

It  has  been  disputed  how  far  the  words  of  the  grant  entitled  them  to  pri- 
vilege in  matters  of  equity.  And  the  general  principle  of  construction 
seems  to  be,  that  where  chattels  only  are  concerned,  or  where  damages 
only  are  to  be  given,  there  their  privilege  is  allowable;  but,  where  the  suit 
is  for  the  thing  itself,  there  their  privilege  cannot  be  allowed.  As  in  the 
following  cases. 

A  bill  was  brought  setting  forth  a  contract  under  seal  with  the  defendant, 
for  making  a  lease  of  certain  lands  in  Middlesex,  and  to  have  execution 
of  the  agreement.  The  defendant  pleaded  the  privilege  of  the  university, 
to  proceed  in  all  quarrels  in  law  and  equity,  except  concerning  freehold  ; 
and  concluded  to  the  jurisdiction  of  the  court.  But  Lord  Keeper  Guild- 
ford overruled  the  plea,  because  in  this  case  they  can  only  excommunicate 
or  imprison,  but  cannot  sequester  lands  in  Middlesex,  and  so  can  give  no 
remedy;  and  because  the  charier  of  the  University  of  Oxford,  empowering 
them  to  proceed  in  all  pleas  and  quarrels  in  law  and  equity,  &c,  ought 
properly  to  be  extended  to  matters  at  common  law  only,  or  to  proceedings 
in  equity  that  might  arise  in  such  cases,  and  not  to  mere  matters  of  equity, 
which  are  originally  such,  as  to  execute  agreements  in  specie. 

2  Ventr.  362,  Draper  v.  Crowther.     ([See  1  Vern.  212. ]| 

So  likewise  on  a  bill  in  Chancery  to  be  relieved  against  a  bond  of  the 
penalty  of  100/.  given  by  the  plaint  iifs  father  to  the  defendant,  who  pleaded 
his  privilege,  that  he  is  a  doctor  in  divinity,  scholar  and  residentiary  stu- 
dent in  the  University  of  Oxford,  and  that  be  ought  not  to  be  sued  but  be- 


UNIVERSITIES.  105 

(B)  Of  their  Courts  and  Privileges  of  Jurisdiction. 

fore  the  chancellor  of  that  university,  or  his  deputy  or  commissary  for  the 
time  being ;  the  plea  on  debate  was  overruled. 
Fin.  R.  45;  Williams  v.  Roberts. 

But,  on  a  bill  to  have  a  bond  delivered  up  of  100Z.  penalty,  the  money 
being  paid,  defendant  pleaded,  that  he  was  a  privileged  person  of  the  Uni- 
versity of  Oxford,  viz.,  a  doctor  of  laws,  and  resident  there,  which  the 
chancellor  certified,  and  demanded  conusance  of  the  matter  in  question  as 
determinable  before  him,  or  before  the  vice-chancellor,  &c,  and  not  else- 
where.    The  court  dismissed  the  bill,  and  allowed  the  plea. 

Fin.  R.  162,  Bushby  v.  Cross. 

So  likewise,  on  a  bill  by  administrator  for  an  account  of  intestate's  estate, 
which  defendants  had  got  in  their  possession,  on  pretence  of  some  debts 
due  to  them  from  the  intestate ;  defendants  pleaded,  they  are  privileged 
persons  of  the  University  of  Oxford,  and  there  resident ;  which  the  chan- 
cellor certified,  and  demanded  conusance  of  the  matter  as  examinable  be- 
fore him,  his  vice-chancellor,  &c,  and  not  elsewhere.  And  the  plea  was 
allowed. 

Fin.  R.  292,  Powell  v.  Mine  and  Adams. 

Lastly,  on  a  bill  brought  in  this  court  for  a  discovery  of  the  personal 
estate  of  Dr.  Aldridge,  deceased,  and  an  injunction  granted  thereupon,  the 
University  of  Oxford  claimed  conusance  of  the  cause,  for  that  both  plaintiff 
and  defendant  were  scholars  of  the  university.  And  Harcourt,  C,  ordered 
the  bill  to  be  dismissed,  and  allowed  an  exclusive  conusance  in  equity 
touching  chattels  to  the  university. 

Per  Harcourt,  Chan.  MS.  R.,  Trin.  12  Ann.  in  Chan.,  Aldridge  v.  Stratford,  Vin. 
Abr.  (V),  22,  p.  11. 

It  is  ^said,  that  the  chancellor  of  the  University  of  Oxford,  or  his  vice- 
chancellor,  may  inflict  ecclesiastical  censures  of  the  greater  excommunica- 
tion on  offenders  even  for  temporal  offences,  and  certify  the  excommuni- 
cation into  the  High  Court  of  Chancery  to  obtain  the  writ  de  excommunicato 
capiendo,  as  if  the  offender  had  been  excommunicated  in  an  ecclesiastical 
cause  and  certified  by  a  bishop.  The  University  of  Cambridge  hath  also 
this  privilege. 

Wood's  Inst.  549. 

In  the  construction  of  their  privileges  with  respect  to  the  assize  of  beer 
and  ale,  it  has  been  contested  that  they  have  not  assisam  ipsam,  that  is, 
they  cannot  appoint  another  assize  than  what  is  set  down  by  statute,  but 
that  they  have  only  cvstodiam  assize,  that  is,  a  power  to  enforce  the  execu- 
tion of  it,  as  well  in  the  price  as  in  the  measure. 

3  Leon.  214;  hut  see  12  W.  3.  c.  11,  §  19.  which  recognises  the  right  of  the  two 
universities  to  size  and  mark  measures  for  ale  and  beer;  and  by  a  errant  of  the  29th 
Ed.  3,  the  University  of  Oxford  hath  the  assize  and  assay  of  wine  and  ale,  as  well  as 
the  custody  of  it.     Wood's  Inst.  550. 

[On  a  motion  for  a  prohibition  to  a  suit  in  the  vice-chancellor's  court 
against  certain  brewers,  for  selling  ill  beer  and  false  measure,  the  particular 
excess  of  jurisdiction  alleged  was,  the  exacting  of  juratory  caution  ;  and  it 
was  insisted,  that  though  they  have  the  assize  of  bread  and  beer  by  charter, 
yet  a  power  to  punish  by  fine,  and  proceed  according  to  the  civil  law,  can- 
not be  by  charter.  Holt,  C.  J.— Before  the  14  H.  8,  the  university  had 
'he  jurisdiction  of  a  leet,  and  exercised  it  in  the  vice-chancellor's  court; 

Vol.  X.— 14 


106  UNIVERSITIES. 

(B)  Of  their  Courts  and  Privileges  of  Jurisdiction. 

bat  the  charter  grants  them  the  power  of  trespasses,  and  that  over  all  per- 
sons whomsoever,  if  a  scholar  be  a  party.     Jldjournatur. 

Rush  v.  Chancellor.  &c,  of  Oxford,  Salk.  343.  That  both  the  universities  have  the 
Jurisdiction  of  a  leet,  has  been  acknowledged  in  subsequent  cases.  3  Burr.  1647; 
1  Black.  R.  517;  Dougl.  5:>7  ;  but  whether  a  tradesman  of  Oxford,  entitled  to  the  pri- 
vileges of  the  university  as  a  college  servant,  but  residing  without  the  walls  of  the  col- 
lege in  the  citv,  be  therefore  exempt  from  serving  the  office  of  constable  for  the  city,  is 
a  question  which  has  been  moved,  but  not  absolutely  determined.  Rex  v.  Routledge, 
Dougl.  530.  It  should  seem,  however,  from  the  language  of  the  court,  and  the  subse- 
quent conduct  of  the  prosecutors  in  that  case,  that  there  can  be  little  doubt  that  the  law 
is  in  favour  of  the  exemption.] 

Such  are  their  general  privileges  of  jurisdiction  ;  it  remains  now  to 
consider, 

1.  How  they  are  to  demand  Conusance. 

It  is  said  that  conusance  may  be  demanded  by  certificate  only,  without 
special  pleading  upon  an  indictment  of  a  privileged  person  for  an  assault 
and  battery. 

Wood's  Inst.  530. 

But  it  has  been  hoi  den,  that  the  claim  of  conusance  ought  to  be  entered 
upon  a  roll,  and  an  affidavit  made  to  verify  the  certificate. 

2  Stra.  810,  Paternoster  v.  Graham,  per  cur.  S.  P.  1  Barnard.  49,65,  under  the  name 
of  Boot  and  Graham.  [The  charter,  the  act  of  parliament  which  confirms  it,  and  all 
the  proceedings,  so  far  as  they  have  gone,  must  be  entered  on  the  roll ;  and,  therefore, 
where  the  charter  and  statute  were  shortly  but  not  fully  set  forth,  and  the  declaration 
which  had  been  delivered  in  the  cause  was  wholly  omitted,  the  claim  was  disallowed 
as  not  made  in  due  form.  Leasingby  v.  Smith,  2  Wils.  406.  See  the  case  of  Wood- 
cock v.  Brooke,  Ca.  temp.  Hardw.  241,  an  instance  of  a  claim  allowed.]  |)And  see 
Browne  v.  Renouard,  12  East,  R.  12. |j 

In  equity,  however,  a  bill  being  filed  against  defendant,  a  fellow  of 
Exeter  College  in  Oxford,  for  an  account  of  several  sums  of  money;  the 
chancellor  of  Oxford  claimed  privilege  by  instrument  in  writing.  But  the 
Lord  Keeper  disallowed  the  claim,  saying  it  must  be  put  in  by  way  of  plea. 
He  declared  nevertheless  that  it  should  not  {a)  be  on  oath,  but  that  it  should 
be  sufficient  to  aver  the  defendant  to  be  a  scholar  resident,  &c. 

1  Cases  in  Can.  237,  Pratt  v.  Taylor.  Lord  Keeper  added,  that  in  case  of  outlawry 
defendant  should  not  be  put  to  aver  the  plea  on  oath,     [(a)  Mitf.  Ch.  PI.  231,  acc.~] 

In  some  cases  the  claim  of  conusance  by  plea  ought  to  conclude  with  a 
traverse:  as,  in  trespass  for  an  assault  and  battery  at  B  in  com.  Hertford, 
the  defendant  pleads,  that  he  was  servant  to  a  scholar  in  Saint  John's  Col- 
lege, Cambridge;  and  that  they  are  to  have  conusance  there.  The  plain- 
tiff demurs,  because  the  defendant  takes  no  traverse,  that  he  was  culpable 
in  any  place  extra  universitatem  Cantabrigice,  that  thereupon  they  might 
have  taken  issue.  The  whole  court  were  clearly  of  opinion,  that  the  de- 
fendant here  ought  to  have  concluded  his  plea  with  a  traverse. 

3  Bulstr.  282,  Payn  v.  Worth. 

2.  By  whom  it  may  be  demanded. 

The  vice-chancellor,  by  his  attorney  or  deputy  appointed  in  writing,  may 
demand  it,  though  the  vice-chancellor  is  but  a  deputy  himself;  for  a  bailiff 
may  properly  demand  conusance,  and  upon  notice  of  the  patent  the  court 
ought  to  supersede. 

Hardr.  505,  510,  Castle  v.  Litchfield ;  2  Danv.  Abr.  174. 


UNIVERSITIES.  107 

(C)  Right  of  Presentation  to  the  Livings  of  Papists. 
||  And  in  the  vacancy  of  the  office  of  chancellor,  the  vice-chancellor  may- 
make  the  claim. 

Williams  v.  Brickenden,  11  East,  543.|| 

3.  .fit  what  time  it  may  be  demanded. 

The  rule  is  that  conusance  must  be  demanded  the  first  day ;  [on  the  re- 
turn of  the  writ,  if  the  cause  of  action  appears  therein  ;  if  not,  then  upon 
the  first  day  given  upon  the  declaration.  After  full  defence  made  or  im- 
parlance prayed,  it  is  too  late.] 

3  Bl.  Com.  298;  2  Wila.  406;  5  Burr.  2823;  |jand  see  Browne  v.  Renouard, 
12  East,  12.l| 

In  an  action  on  the  case  against  a  member  of  the  University,  the  bill 
was  of  Easter  term  11  Anne,  and  the  defendant  had  an  imparlance  till  the 
first  day  of  Trinity  term  following;  after  which,  and  before  plea  pleaded, 
the  University  of  Cambridge  by  their  attorney  demanded  conusance,  and 
the  claim  was  disallowed  because  it  was  not  made  the  first  day. 

2  Ld.  Raym.  1339,  in  case  of  The  King  v.  Cambridge  University,  alias  Dr.  Berkley's 
case,  cited  as  so  held,  Hil.  1 1  Ann.  B.  R.  Perne  v.  Manners.  [See  the  cases  of  Lea- 
singby  v.  Smith,  2  Wils.  406,  and  Rex  v.  Agar,  5  Burr.  2823,  where  claims  of  conu- 
sance were  disallowed  as  not  made  in  due  time.] 

||In  an  action  of  assault  and  battery  brought  by  an  attorney  against  a 
proctor  of  the  University  of  Oxford  and  a  jailer  there,  the  chancellor  put 
in  a  claim  of  cognisance,  after  replication  and  before  the  rejoinder,  and  the 
Court  of  Common  Pleas  held  on  a  review  of  the  cases  that  the  claim  was 
not  made  in  time,  being  after  imparlance.  On  the  question  also  raised, 
Whether  the  claim  could  be  made  against  the  privilege  of  the  plaintiff 
as  an  attorney,  it  was  therefore  unnecessary  to  give  an  opinion ;  but  Willes, 
C.  J.,  expressed  an  opinion  against  the  claim  in  such  a  case,  saying, 
"  Whenever  this  case  comes  judicially  before  us,  though  I  shall  be  as  ten- 
der of  the  privileges  of  the  University  of  Oxford  as  any  man  living,  having 
the  greatest  veneration  for  that  learned  body,  yet  I  hope  I  shall  always,  as 
far  as  I  can  by  law,  endeavour  to  support  the  common  law  of  the  land  and 
that  excellent  method  of  trial  by  juries,  upon  which  all  our  lives,  liberties, 
and  properties  depend  ;  and  that  I  shall  endeavour,  as  far  as  I  can,  to  pre- 
vent the  encroachment  of  any  jurisdiction  whatever  that  proceeds  by  an- 
other law  and  another  method  of  trial." 

Welles  v.  Trahern,  Willes  R.  233,  where  see  the  claim  stated  at  length.  In  Litt. 
R.  304,  the  claim  was  denied  in  an  action  by  an  attorney  of  C.  P.  against  a  member 
of  the  University  of  Oxford. || 

(C)  Of  their  Privileges  with  regard  to  their  Right  of  Presentation  to  the  Livings  of 

Papists,  (a) 

1 .  In  what  Cases  they  shall  present. 

3  Jac.  1,  c.  5,  enacts,  that  every  papist  recusant  convict,  during  the  time 
that  he  shall  remain  a  recusant  convict,  shall  from  and  after  the  end  of  this 
present  session  of  parliament  be  disabled  to  present  to  any  benefice  or  ec- 
clesiastical living,  or  to  nominate  to  any  free  school,  hospital,  or  donative  ; 
and  shall  likewise  be  disabled  to  grant  any  avoidance  to  any  benefice. 

||(a)  By  the  act  for  relief  of  Roman  Catholics,  10  G.  4,  c.  7,  §  16,  it  is  provided,  that 
nothing  therein  shall  alter  the  laws  in  force  in  respect  to  presentation  to  ecclesiastical 
benefices.     See  Vol.  vii.  tit.  Papists,  (C).|| 

§  19.  The  chancellor  and  scholars  of  the  University  of  Oxford  shall 


108  UNIVERSITIES.  i 

(C)  Right  of  Presentation  to  the  Livings  of  Papists. 

have  the  presentation,  &c,  to  every  such  benefice,  school,  hospital,  and 
donative,  in  the  counties  of  Kent,  Middlesex,  Sussex,  Surry,  Hampshire, 
Berkshire,  Buckinghamshire,  Gloucestershire,  Worcestershire,  Stafford- 
shire, Warwickshire,  Wiltshire,  Somersetshire,  Devonshire,  Cornwall, 
Dorsetshire,  Herefordshire,  Northamptonshire,  Pembrokeshire,  Carmarthen- 
shire, Brecknockshire,  Monmouthshire,  Cardiganshire,  Montgomeryshire,  j 
the  city  of  London,  and  in  every  city  and  town  being  a  county  of  itself, 
within  the  limits  of  the  counties  aforesaid. 

§  20.  The  chancellor  and  scholars  of  the  University  of  Cambridge  shall 
have  the  presentation,  &c,  to  every  such  benefice,  school,  hospital,  and 
donative  in  the  counties  of  Hertfordshire,  Cambridgeshire,  Huntingdon- 
shire, Suffolk,  Norfolk,  Lincolnshire,  Rutlandshire,  Leicestershire,  Derby- 
shire, Nottinghamshire,  Shropshire,  Cheshire,  Lancashire,  Yorkshire, 
Durham,  Northumberland,  Cumberland,  Westmoreland,  Radnorshire,  Den- 
byshire,  Flintshire,  Carnarvonshire,  Anglesey,  Merioneth,  Glamorganshire, 
and  in  every  city  and  town  being  a  county  of  itself,  lying  within  the  limits 
of  the  counties  last  mentioned. 

By  the  1  W.  &  M.,  c.  26,  §  2,  every  person  refusing  to  make,  or  to 
appear  for  the  making  the  declaration  against  transubstantiation,  and  whose 
name  shall  be  recorded  at  the  quarter-sessions,  is  disabled  to  make  any  pre- 
sentation, donation,  or  grant  of  avoidance  of  any  ecclesiastical  living,  as 
fully  as  if  he  were  a  popish  recusant  convict,  and  the  chancellor,  &c,  of 
the  "universities  shall  have  the  presentation  in  the  respective  limits  men- 
tioned in  the  act  of  3  Jac.  1,  c.  5. 

And  farther  by  12  Ann.  c.  14,  papists  and  their  children  under  the  age 
of  twenty-one  years,  not  being  protestants,  though  not  convicted,  and  their 
mortgagees  and  trustees,  shall  lose  their  presentations ;  and  the  respective 
universities  shall  present. 

2.    Whom  they  shall  present. 

By  3  Jac.  1,  c.  5,  §  21,  it  is  provided,  that  neither  of  the  universities 
shall  present  to  any  benefice  any  such  person  as  shall  then  have  any  other 
benefice  with  cure  of  souls;  and  such  presentation  shall  be  void. 

It  was  agreed  that  a  layman  may  he  presented  to  a  prebend,  for  non  habet  curam 
animarum,CTo.  Eliz.  79.  And  for  the  same  reason  a  dean,  archdeacon,  prebendary, 
&c,  may  be  presented  or  nominated  by  the  university;  for  their  promotion  is  not  a 
benefice  with  cure  of  souls.     Yin.  Abr.  v.  2,  p.  5.     But  see  3  Inst.  155,  contra. 

3.  How  their  right  of  Presentation  may  be  prevented. 

If  patron  recusant  grants  the  patronage  in  fee  to  another,  in  such  case 
the  university  shall  not  have  the  presentment ;  and  in  the  same  manner,  if 
he  grants  it  in  tail  for  life  or  years,  during  the  continuance  of  this  grant,  he 
is  not  patron  in  possession,  and  therefore  the  university  shall  not  present 
by  the  words  of  the  statute  of  3  Jac.  1,  c.  5. 

Sir  William  Jo.  19,Standen  v.  The  University  of  Oxford  and  Whitton. 

But,  if  a  patron  makes  a  lease  for  years  of  an  advowson,  and  afterwards 
becomes  a  recusant,  the  university  shall  have  the  presentation,  as  a  future 
interest  given  to  them. 

Sir  William  Jo.  26,  Standen  v.  The  University  of  Oxford  and  Whitton,  S.  P.  arg. ; 
10  Rep.  50  a. 

So  likewise,  if  a  patron  acknowledges  a  statute  merchant,  and  after  be- 


UNIVERSITIES.  109 

(C)  Right  of  Presentation  to  the  Livings  of  Papists. 

comes  recusant  convict,  and  then  the  statute  is  extended,  the  university 
notwithstanding  shall  have  the  presentment. 

Sir  William  Jo.  26,  Standen  v.  The  University  of  Oxford  and  Whitton,  S.  P.  arg. ; 
10  Rep.  56  a. 

[It  was  determined  by  Lord  Hardwicke,  on  the  statute  of  Anne  here- 
after mentioned,  that  that  statute  doth  not  make  the  whole  trust  void,  but 
only  the  turn  upon  an  avoidance  ;  so  that  if  the  party  conforms  before  any 
avoidance  happens,  nothing  can  vest  in  the  universities. 

Cottington  v.  Fletcher,  2  Atk.  155.] 

4.  Hotu  Trusts  made  to  prevent  their  Bight  of  Presentation  may  be  discovered. 

Where  secret  trusts  are  made  to  prevent  their  right  of  presentation,  the 
following  statutes  point  out  a  method  for  discovering  such  trusts. 

By  1  W.  &  M.  c.  26,  §  3,  trustees  of  recusants  are  disabled  to  present 
or  grant  any  avoidance  of  any  ecclesiastical  living,  free  school,  or  hospital, 
and  the  respective  universities  are  to  have  the  presentations. 

And  if  any  trustee,  mortgagee,  or  grantee  of  any  avoidance  shall  present, 
&c,  to  any  such  ecclesiastical  living,  &c,  where  the  trust  shall  be  for  any 
recusant  convict,  or  disabled,  without  giving  notice  of  the  avoidance  in 
writing  to  the  vice-chancellor  of  the  university,  to  whom  the  presentation 
shall  belong,  within  three  months  after  the  avoidance,  he  shall  forfeit  500/. 
to  the  university  to  which  the  presentation,  &c,  shall  belong. 

§  7.  Persons  making  the  declaration,  and  taking  the  oaths  before  the 
justices  at  the  quarter-sessions,  where  their  names  are  recorded,  shall  be 
discharged  of  the  disability. 

Farther,  by  12  Ann.  st.  2,  c.  14,  §  2,  presenter  is  to  be  examined  by 
the  ordinary,  whether  he  be  a  papist  or  a  trustee  for  such, 

§  3.  Presentee  is  to  be  examined  upon  oath  by  the  ordinary,  if  he 
knows,  or  believes  the  presentor  to  be  a  papist,  or  a  trustee  for  a  papist, 
or  for  the  children  of  such,  or  any  other  person ;  and  if  he  answers  not 
directly,  the  presentation  to  be  void. 

§  4.  Universities  and  their  presentees  may  bring  a  bill  in  Chancery  for 
discovery ,(«)  and  upon  neglecting  to  answer,  the  bill  to  be  taken  pro  con- 
fesso. 

(a)  A  bill  founded  upon  this  statute  can  only  be  for  discovery,  not  for  relief.  So 
determined  by  Lord  Talbot,  supra,  Vol.  vii.  p.  393. 

§  5.  Patrons  and  their  clerks,  contesting  the  right  of  the  university  in 
quare  impedit,  may  be  examined  in  court,  or  by  commission  or  affidavit,  is 
the  court  shall  think  proper,  as  to  secret  trusts ;  and  if  upon  discovery  who 
is  the  cestui  que  trust,  he  shall,  upon  a  rule  made  for  him  to  come  into 
court,  or  before  commissioners,  to  make  the  declaration  against  transub- 
stantiation,  neglect  so  to  do,  he  shall  be  esteemed  convict  in  respect  to  his 
presentation. 

It  was  moved  in  a  quare  impedit,  that  the  plaintiff  claiming  right  of  patronage  might 
be  examined  upon  oath  touching  secret  trusts  for  papists  pursuant  to  this  act,  and  a 
commission  for  such  examination  was  ordered  to  issue,  directed  to  the  three  protho- 
notaries,  or  any  two  of  them.  Barnes,  King  v.  Bishop  of  Carlisle,  and  Masters  and 
Scholars  of  the  University  of  Cambridge.  See  likewise  where  the  court  ordered  a 
commission  for  the  like  purpose,  and  directed  the  prothonotary  to  strike  the  commis- 
sioners' names,  and  to  settle  the  interrogatories.  Barnes,  R utter  v.  Bishop  of  Hereford 
and  the  University  of  Cambridge. 

§  6.  And  the  answer  of  such  patrons,  and  the  person  for  whom  they  are 
intrusted,  and  his  and  their  clerks,  and  their  examinations  and  affidavits 

K 


110  UNIVERSITIES. 

(C)  Right  of  Presentation  to  the  Livings  of  Papists. 

taken  as  aforesaid  by  order  of  any  court,  or  by  the  ordinary,  shall  be  al- 
lowed as  evidence  against  such  patron  so  presenting,  and  his  clerk. 

§  8.  No  lapse  shall  incur  nor  plenarty  be  a  bar,  till  three  months  after 
the  answer  put  in,  or  the  bill  taken  pro  confesso,  or  the  prosecution  deserted, 
provided  such  bill  be  exhibited  before  any  lapse  incurred. 

§  10.  Upon  confession  or  discovery  of  trust,  the  production  of  deeds 
may  be  enforced. 

Lastly,  The  11  G.  2,  c.  17,  §  5,  enacts,  That  every  grant  of  any  ad- 
vowson  of  any  ecclesiastical  living,  school,  hospital,  or  donative,  and  every 
grant  of  any  avoidance  thereof,  by  any  papist  or  person  making  profession 
of  the  popish  religion,  or  any  mortgagee  or  person  intrusted  for  any  papist, 
&c,  shall  be  void,  unless  such  grant  shall  be  made  bona  fide,  and  for  a 
full  consideration,  to  a  protestant  purchaser,  and  only  for  the  benefit  of 
protestants ;  and  such  grantee  shall  be  deemed  a  trustee  for  a  papist,  and 
they  and  their  presentees  shall  be  compelled  to  make  such  discovery  relat- 
ing to  such  grants  and  presentations  as  by  the  act  12  Ann.  st.  2,  c.  14,  is 
directed.  And  every  devise  to  be  made  by  any  papist  of  any  such  advow- 
son  &c,  with  intent  to  secure  the  benefit  thereof  to  the  heirs  or  family  of 
such  papist,  shall  be  void;  and  such  devisees  and  persons  claiming  under 
such  devisees,  and  their  presentees,  shall  be  compelled  to  discover  whether 
such  devisees  were  not  made  with  the  said  intent. 

|jSee  Vol.  vii.  tit.  Papists,  (C).|| 

5.  How  their  Right  of  Presentation  may  be  divested. 

When  once  the  presentation  pro  h,dc  vice  is  vested  in  the  university, 
thouo-h  the  recusant  conforms  himself  afterwards  or  dies,  yet  the  university 
shall  present. 

10  Rep.  58  a,  in  the  Chancellor,  &c,  of  Oxford  University's  case. 

So  likewise  if  a  recusant  is  attaint  of  felony  or  prcemunire,  the  interest  of 
the  university  shall  not  be  divested. 

Per  Hutton,  Sir  William  Jo.  26,  in  the  case  of  Standen  v.  The  University  of  Ox- 
ford and  Whitton. 

6.    How  it  may  be  avoided. 

The  1  W.  &  M.  sess.  1,  c.  26,  §  6,  enacts,  that  the  benefice  to  which 
persons  are  presented  by  the  universities  for  the  recusancy  of  the  patron, 
shall  become  void  in  case  of  absence  from  the  same  above  the  space  of 
sixty  days  in  any  one  year. 


Ill 


USES  AND  TRUSTS. 


/SPART   I.-OF   USES.g/ 

A  use  at  common  law  was  an  equitable  right  which  he  who  conveyed 
a  legal  estate  to  another  reserved  to  himself,  upon  trust  and  confidence 
that  the  person  to  whom  he  so  conveyed  it,  would  nevertheless  suffer  him 
to  take  the  rents  and  profits  of  the  land,  and  that  he  would  execute  estates 
according  to  his  direction. 

Gilb.  Law  of  Uses,  175;  1  Rep.  121,  Chudleigh's  case.  £See  Bac.  Tr.  306  ;  Cor- 
nish on  Uses  ;  Sanders  on  Uses  ;  1  Fonbl.  Eq.  363  ;   Co.  Lit.  272  b.g/ 

The  feoffee,  therefore,  or  terre-tenant,  (that  is,  the  person  to  whom  the 
legal  estate  was  conveyed,)  had  the  freehold  or  sole  property  in  him :  and 
the  person  who  had  conveyed  the  legal  estate  to  him,  (that  is,  the  cestui 
que  use,)  had  neither  jus  in  re ;  nor  ad  rem, ;  for  if  he  had  entered  upon 
the  land  without  the  consent  of  the  feoffee,  he  had  been  a  trespasser  ;  so 
that  nothing  remained  in  him  but  a  bare  confidence  or  trust;  for  which,  if 
it  was  broken,  he  had  no  remedy  but  by  subpoena  in  Chancery. 

But  this  equitable  right  extended  itself  to  all  persons  who  claimed  in 
privity  under  the  feoffee  ;  that  is,  who  came  into  the  same  estate  which 
the  feoffee  had  in  the  use,  and  by  contract  with  him  ;  for  a  disseisor  came  into 
the  same  estate,  but  not  by  contract  or  agreement ;  and  therefore,  claiming 
not  by  or  from  the  feoffee,  he  consequently  did  not  claim  the  estate  as  it 
was  subject  to  the  uses  ;  but  he  claimed  an  estate  above  that  free  from 
and  discharged  of  the  uses,  and  it  would  in  a  manner  have  defeated  his 
title,  should  he  have  been  compelled  to  stand  seised  to  a  use,  when  he  did 
not  claim  the  estate  which  was  charged  with  a  use ;  for  confidence  in  the 
person  was  requisite  as  well  as  privity  of  estate. 

Confidence  in  the  person  was  cither  express  or  implied  ;  as,  if  a  feof- 
fee to  a  use  had,  for  good  consideration,  enfeoffed  one  who  had  no  notice  of 
the  use,  the  use  was  destroyed  ;  for  the  person  enfeoffed  not  knowing 
that  there  were  any  uses,  no  trust  could  be  reposed  in  him  to  let  the  cestui 
que  use  take  the  profits  ;  but  if'he  had  notice,  a  trust  might  well  be  said  to 
be  reposed  in  him,  since  he  took  the  land,  knowingly  charged  with  the 
uses.  So,  also,  if  the  feoffment  had  been  made  ivithout  consideration, 
though  the  person  enfeoffed  had  no  notice  of  the  use,  yet  he  would  never- 
theless have  stood  seised  to  the  use  ;  for  the  law  in  that  case  would  have 
implied  notice  of  the  use,  and  consequently  the  trust  would  have  re- 
mained. 

Hence  it  may  be  collected,  that  to  every  use  at  common  law  there 
were  two  inseparable  incidents, — a  privity  in  estate,  and  a  confidence  in 
the  person ;  and  where  either  of  these  failed,  the  use  was  suspended  or 
destroyed. 

But  for  the  better  understanding  of  the  law  relative  to  this  head,  we 
shall  consider, — 

(A)  The  Origin  and  first  Introduction  of  Uses. 

(B)  The  several  Properties  of  an  Estate  in  Use  at  Common  Law,  which  are, — 


112  USES   AND   TRUSTS. 

Uses  and  Trusts. 

1.  That  it  is  alienable;  wherein,  of  the  Power  of  Cestui  que  Use. 

1.  At  Common  Law. 

2.  By  the  Statute  of  1  R.  3,  c.  1. 

2.  That  it  is  descendible  ;  wherein, 

1.  Of  the  Descent  of  a  Use  in  Possession. 

2.  Of  the  Descent  of  a  Use  in  Reversion. 

3.  That  it  is  devisable. 

4.  That  it  is  not  extendible,  or  Assets, 

5.  That  it  is  not  forfeitable. 

6.  That  a  Woman  is  not  dowable  of  a  Use. 

(C)  The  Inconveniences  of  Uses. 

fD)  The  Alterations  introduced  with  respect  to  Conveyances  to  Uses  by  the  27  H 
8,  c.  10. 

(E)  The  several  Sorts  of  Conveyances  to  Uses  ;  wherein, 

1.  Of  those  which  raise  Uses  by  Way  of  Transmutation  of  Possession  ;  such  as, — 

1.  Feoffment:  2.  Fines;  3.  Recoveries,  of  which  before,  under  their  respec- 
tive Titles.     Cut  herein  farther, — 

Of  Deeds  declaring  the  Uses  of  Feoffments,  Fines,  and  Recoveries  wherein, 

1.  Who  may  declare  Uses. 

2.  To  whom  they  may  be  declared. 

3.  In  what  Manner  they  may  be  declared. 

4.  At  what  Time  they  may  be  declared. 

5.  In  what  Cases  Averments  may  be  made  of  Uses. 

2.  Of  those  Conveyances  which  raise  Uses  without  Transmutation  of  Possession  ; 

such  as, — 
1.  Covenants  to  stand  seised  to  Uses  ;  wherein, 

1.  Who  may  covenant  to  stand  seised,  and  to  whom. 

2.  What  Consideration  is  necessary  to  a  Covenant  to  stand  seised,  and  how 

far  it  extends. 

3.  By  what  words  a  man  may  covenant  to  stand  seised. 

4.  The  Effect  of  a  Covenant  to  stand  seised. 

3.  Of  Bargain  and  Sale,  of  which  before  under  its  proper  Title. 

(F)  What  Kind  of  Property  may  be  conveyed  by  Way  of  Use. 

(G)  The  several  Kinds  of  Uses  executed  by  the  Statute  ;  such  as, 

1.  Uses  in  esse. 

2.  Uses  in  Possibility  ;  wherein, 

1.  Of  executory  Fees;  and  the  Difference  where  they  rise  by  way  of  Use, 

and  where  by  Devise. 

2.  Of  contingent  Remainders,  of  which  before  under  Title  "Remainder:" 

But  herein  farther, 

1.  In  what  Manner  they  are  to  be  executed. 

2.  How  they  may  be  defeated. 

1.  Where  there  is  no  power  of  Revocation. 

2.  Where  there  is  an  express  Power  of  Revocation. 

3.  How  they  may  be  suspended,  revived,  or  extinguished. 
(H)  The  Cases  out  of  the  Statute ;  as, 

1.  Where  Uses  are  limited  upon  Uses. 

2.  llliere  Terms  are  raised  and  limited  in  Trust  ,•  v>herein, 

1.  Of  Terms  which  wait  on  the  Inheritance. 

2.  Of  Terms  in  Gross. 

3.  Where  Lands  are  limited  to  Trustees  to  pay  over  the  Rents  and  Profits. 


USES  AND  TRUSTS.  113 

(B)  Properties  of  an  Estate  in  Use  at  Common  Law. 

(I)  Resulting  Uses,  or  Uses  by  Implication. 

(K)  Second  or  shifting  Uses. 

'L)  The  Manner  of  pleading  Uses. 


(A)  The  Origin  and  first  Introduction  of  Uses. 

The  original  of  uses  was  from  a  title  under  the  civil  law,  which  allows 
)f  an  usufructuary  possession,  distinct  from  the  substance  of  the  thing 
itself;  and  it  was  brought  over  to  us  from  thence  by  the  clergy,  who  were 
masters  of  the  civil  law.  For  when  they  were  prohibited  from  taking  any 
thing  in  mortmain,  after  several  evasions  by  purchasing  lands  of  their  own, 
tenants  suffering  recoveries,  and  purchasing  lands  round  the  church  and 
making  them  churchyards  by  bull  from  the  pope,  at  last  this  way  was  in- 
vented of  conveying  lands  to  others  to  their  own  use  ;  and  this  being  proper 
matter  of  equity,  it  met  with  a  very  favourable  construction  from  the  judge 
of  the  Chancery  court,  who  was  in  those  days  commonly  a  clergyman ; 
and  the  clergy  thought  this  a  statute  contrary  to  natural  justice,  and  so 
could  easily  tolerate  any  act  for  evading  it.  Thus  this  way  of  settlement 
began  ;  and  was  often  used  for  other  fraudulent  purposes,  as  to  defeat  just 
debts,  wardships,  escheats,  &c. ;  but  it  more  generally  prevailed  amono- 
all  ranks  and  conditions  of  men,  by  reason  of  the  civil  commotions  between 
the  houses  of  Lancaster  and  York,  to  secrete  the  possessions,  and  to  pre- 
serve them  to  their  issue,  notwithstanding  attainders. (a) 

Gilb.  Law  of  Uses,  3.  (a)  Sir  William  Jones,  127,  Lord  Willoughby's  case.  ||The 
analogy  between  the  origin  and  progress  of  the  fidei  commissi/)  of  the  Romans  and  of 
our  uses  is  remarkable,  and  shows  how  "  states  and  commonwealths  have  common 
accidents."  Bacon  says  :  "  I  find  that  in  the  civil  law  that  which  cometh  nearest  in 
name  to  the  use  is  nothing  like  in  matter,  which  is  usus  fructus  ,•  for  usus  fructus  and 
dominium  is  with  them  as  with  their  particular  tenancy  and  inheritance.  But  that 
which  resembleth  the  use  most  is  fidei  commission  and  therefore  you  shall  find  in  Justi- 
nian, lib.  2,  that  they  had  a  form  in  testaments  to  give  inheritance  to  one  to  the  use  of 
another,  Hxredem  constUuo  Caium,  rogo  autem  te,  Caie,  ut  hserediiaiem  restituos  Seio  ; 
and  the  text  of  the  civilians  saith,  that  for  a  great  time  if  the  heir  did  not  as  he  was  re- 
quired, cestui  que  use  had  no  remedy  at  all,  until  about  the  time  of  Augustus  Caesar, 
there  grew  in  custom  a  flattering  form  of  trust,  for  they  penned  it  thus  :  Jiogo  te  per 
salutem  Jugusti,  or  per  fortunam  Jugusti,  &c. ;  whereupon  Augustus  took  the  breach 
of  trust  to  sound  in  derogation  of  himself,  and  made  a  rescript  to  the  pra;tor  to  give 
remedy  in  such  cases.  Whereupon  within  the  space  of  one  hundred  years-,  these  trusts 
did  spring  and  speed  so  fast,  as  they  were  forced  to  have  a  particular  chancellor  only 
for  uses,  who  was  called  praetor  fidei  commissarius  ,•  and  not  long  after,  the  inconveni- 
ence of  them  being  found,  they  resorted  unto  a  remedy  much  like  unto  this  statute ;  for 
by  two  decrees  of  senate,  called  Senatus  Consultum  TrebeUianum  et  Pegasianum,  they 
made  cestui  que  use  to  be  heir  in  substance."  Bacon  on  Stat,  of  Uses. ||  /SCruise. 
Dig.  388;  1  Madd.  Ch.  Pr.  446;  Inst.  2,  32,2;  Code,  6,  42;  Bouv.  L.  D.  Fidei 
commissum.     In  Louisiana,  fidei  commissa  were  abolished  by  the  code.    5  N.  S.  302.g- 

(B)  The  several  Properties  of  an  Estate  in  Use  at  Common  Law. 

Under  this  head  it  will  be  sufficient  to  observe  in  general,  1.  That  at 
common  law  a  use  is  alienable  ;  2.  that  it  is  descendible  ;  3.  that  it  is  devi- 
sable ;  4.  that  it  is  not  extendible,  or  assets ;  5.  that  it  is  not  forfeitable ; 
6.  that  a  woman  is  not  dowable  of  a  use. 

1.  That  it  is  alienable  :  wherein,  of  the  Power  of  Cestui  que  Use. 

1.  At  Common  Law.     2.  Bv  the  Statute  of  1  R.  3,  c.  1. 

Vol.  X.— 15  k  2 


114  USES  AND  TRUSTS. 

(B)  Properties  of  an  Estate  in  Use  at  Common  Law. 

1.  Jit  Common  Law. 

It  has  been  said  in  the  definition  of  a  use,  that  cestui  que  use  had  neither 
jus  in  re,  nor  ad  rem;  for,  if  the  feoffee  broke  his  trust,  he  had  no  remedy 
against  him  but  by  subpoena  in  Chancery. 

This  subpoena  commenced  in  the  time  of  E.  3,  but  it  was  always  against 
the  feoffee  in  trust  himself,  and  was  never  allowed  against  his  heir  till  H.  6, 
and  in  this  point  was  the  law  changed  by  Fortescue,  C.  J.  So  that  if  the 
feoffee  had  died,  his  heir  was  seised  to  his  own  use,  as  the  law  was  taken 
to  the  time  of  H.  4,  till  at  length  the  subpoena  was  granted  both  against  the 
iheir,  and  the  feoffee  of  the  feoffee,  about  the  time  above  mentioned,  or,  ac- 
cording to  some,  later. 

Kelw.  42  b,  46  b. 

But,  though  at  common  law  cestui  que  use  had  no  power  over  the  land, 
vet  might  he  alien  the  use,  because  every  one  may  dispose  of  the  rights 
that  were  in  him  ;  or  he  might  prefer  a  bill  in  Chancery  to  make  the  terre- 
tenant  execute  the  use  in  himself. 

Gilb.  Law  of  Uses,  26. 

But,  at  common  law,  if  cestui  que  use  had  entered  and  made  a  feoffment 
in  fee  of  the  lands,  this  had  not  been  good  to  pass  the  estate  to  the  feoffee  ; 
because  cestui  que  use  had  not  the  freehold  in  him,  and  so  could  not  pass  it 
to  another ;  but  by  his  entry  he  was  a  disseisor :  yet  in  this  case,  if  the 
feoffees  of  cestui  que  use  had  re-entered  upon  the  purchaser,  the  feoffees 
would  not  have  had  the  lands  to  their  own  use  ;  and  they  would  not  have 
stood  seised  to  the  use  of  cestui  que  use,  because  he  had  transferred  the  use 
to  another. 

Plow.  352  b.  The  feoffees  upon  their  re-entry  would,  it  seems,  stand  seised  to  the 
use  of  the  last  feoffee.  See  Plow.  loc.  cit.  ||In  a  similar  case  at  this  day  the  trustees 
would  be  compelled  to  convey  to  the  feoffee  of  the  cestui  que  trust.  Gilbert  by  Sug- 
den,  50.|| 

If  cestui  que  use  make  a  lease  for  years,  rendering  rent,  the  reservation 
is  void,  unless  it  be  by  deed  ;  for  the  rendering  of  rent  to  a  man  is  an 
acknowledgment  of  the  holding  of  lands  from  him  ;  but  here  the  lands  are 
not  held  of  cestui  que  use,  but  of  the  feoffees  who  have  the  reversion.  But, 
if  the  reservation  be  by  deed,  the  feoffees  shall  not  have  the  rent  reserved, 
but  cestui  que  use  shall  have  it. 

Bro.  F.  to  Uses,  338,  §  23,  339,  §  26.  |jThese  cases,  and  those  opposite  tbe  next 
paragraph,  arose  after  the  statute  1  Ric.  3,  c.  l.|| 

If  cestui  que  use  make  feoffment,  with  a  letter  of  attorney  to  give  livery, 
and  the  attorney  give  livery  accordingly ;  qu.  whether  the  feoffment  was 
good,  or  whether  it  was  not  a  disseisin  ? 

Bro.  F.  to  Uses,  339,  §  28. 

But  by  the  statute  of  1  R.  3,  c.  1,  a  power  was  annexed  to  a  use  that 
cestui  que  use  should  alien  the  lands. 

The  reason  of  that  statute  was,  because  cestui  que  use  in  possession  often 
aliened  the  lands,  and  then  the  feoffees  entered,  which  caused  a  great  deal 
of  vexation  and  Chancery  suits ;  and  therefore  the  statute  gave  cestui  que 
use  an  immediate  power  of  alienation,  without  the  concurrence  of  the  feof- 
fees; which  leads  us  more  particularly  to  examine  the  power  of  cestui  que 
use. 

Gilb.  Law  of  Uses,  27. 


USES  AND   TRUSTS.  115 

(B)  Properties  of  an  Estate  in  Use  at  Common  Law. 
2.  By  the  Statute  of  1  R.  3,  c.  1. 

The  statute  of  1  R.  3,  c.  1,  enacts,  that  every  estate,  feoffment,  gift,  release, 
grant,  lease,  and  confirmation  of  lands,  tenements,  rents,  services,  or  heredita- 
ments, made  or  had,  or  hereafter  to  be  made  or  had,  by  any  person  or  persons, 
being  of  full  age,  of  whole  mind,  at  large,  and  not  in  duress,  to  any  person 
or  persons ;  and  all  (a)  recoveries  and  executions  (b)  had  or  made,  shall  be 
good  and  effectual  to  him  to  whom  it  is  so  made,  had,  or  given,  and  to  all 
other  to  his  rise,  against  the  seller,  feoffor,  donor,  or  grantor  thereof  and 
against  the  sellers,  feoffors,  donors,  or  grantors,  his  or  their  heirs,  claiming 
the  same  only  as  heir  or  heirs  to  the  same  sellers,  feoffors,  donors,  or  grant- 
ors,^) and  every  of  them,  and  against  all  ot/iers  having  or  claiming  any  title 
or  interest  in  the  same,(d)  only  to  the  use  of  the  same  seller,  feoffor,  donor,  or 
grantor,  sellers,  feoffors,  donors,  or  grantors,  or  his  or  their  said  heirs,  at  the 
time  of  the  bargain,  sale,  covenant,  gift,  or  grant  made  :(e)  saving  to  every 
person  or  persons  such  right,  title,  action,  or  interest,  by  reason  of  any  gift 
in  tail  thereof  made,  as  they  ought  to  have  had,  if  this  act  had  not  been 
made. 

(a)  By  this  word  (all)  feint  recoveries,  as  well  as  recoveries  upon  good  title,  are  com- 
prehended. But  they  are  good  only  against  the  grantors,  &c,  and  their  heirs  claiming 
only  as  heirs  to  such  grantors,  &c.  So  that  they  are  not  good  against  him  that  claims 
as  heir  to  the  grantor  and  his  feme  in  tail  perforatum  doni.  Arg.  PI.  C.  4  a,  b,  Mich. 
6  Eliz.  in  Maxwell's  case,  (b)  If  a  man  recovers  by  erroneous  judgment,  and  makes 
feoffment  to  his  use,  and  the  other  brings  writ  of  error,  and  reverses  the  judgment,  he 
may  enter  without  scire  facias  against  the  feoffees  ;  for  it  is  a  recovery,  and  therefore  it 
shall  bind  him  and  his  heirs  and  feoffees  by  the  statute  1  R.  3  Bro.  Feoffment  to  Uses, 
337,  §  3.  (c)  Yet  if  cestui  que  use  grants  a  rent-charge,  and  the  feoffees  are  disseised, 
the  grant  shall  be  good  against  the  disseisor;  and  yet  he  does  not  claim  only  by  the 
cestui  que  use.  Arg.  2  Le.  153,  pi.  185,  in  case  of  CordePs  Executors  v.  Clifton,  (d)  This 
statute  did  not  take  away  the  power  of  feoffees,  for  they  may  yet  make  feoffments,  but 
enlarged  the  power  of  cestui  que  use,  who  may  now  make  feoffments  likewise.  Godb. 
303,  in  case  of  Lord  Sheffield  v.  Ratcliff.  (e)  It  was  agreed  per  cur.  that  these  words 
are  taken  for  tenant  in  tail  in  possession,  and  not  tenant  in  tail  in  use;  for  cestui  que  use 
in  tail  has  no  right  or  interest.  Bro.  Feoffment  al  Use,  339  b,  §  40.  ||Sir  E.  Sugden 
observes,  several  statutes  were  passed  as  well  before  this  act  as  after  it,  and  previous 
to  the  great  statute,  in  order  to  remedy  the  abuses  arising  out  of  uses.  By  this  act  the 
conveyances  of  cestui  que  use  were  made  binding  against  him  and  his  heirs,  and  also 
against  all  persons  claiming  to  his  use.  Although  the  act  has  now,  it  is  apprehended, 
ceased  to  have  any  operation,  it  forms  an  essential  part  of  a  work  on  uses.  Gilb.  by 
Sugden,  52.(| 

Here  it  is  observable,  that  there  is  a  difference  between  a  feoffment  ac- 
cording to  this  statute,  and  a  feoffment  at  common  law.  In  case  of  feoff- 
ments at  the  common  law,  the  feoffor  ought  to  be  seised  of  the  lands  at  the 
time  of  the  feoffment ;  but,  if  a  feoffment  be  according  to  the  statute  of 
1  R.  3,  in  such  case  the  feoffor  did  not  need  to  be  in  possession.  Feoff- 
ments at  the  common  law  give  away  both  estates  and  rights ;  but  feoff- 
ments by  the  statute  of  R.  3  give  the  estates,  but  not  the  rights.  In  case 
of  feoffments  at  common  law,  the  feoffee  is  in  the  per,  viz.,  by  the  feoffor; 
but  in  case  of  feoffments  by  the  statute  of  R.  3,  the  feoffees  are  in  the  post, 
viz.,  by  the  first  feoffees. 

Godb.  318,  Ld.  Sheffield's  case;  2  Roll.  R.  334,  S.  C. 

Another  difference  likewise  is  taken  in  Plowden  between  the  feoffment 
of  the  feoffees  and  of  cestui  que  use;  for  if  the  cestui  que  use  for  life  or  in 
tail  made  a  feoffment  in  fee,  either  with  or  without  consideration,  all  the 
old  uses  were  discontinued,  and  the  ancient  estate  which  the  feoffees  had 
is  gone,  and  a  new  estate  created,  subject  to  those  new  uses  raised  by  the 


116  USES  AND  TRUSTS. 

(B)  Properties  of  an  Estate  in  Use  at  Common  Law. 

feoffment ;  for  when  cestui  que  use  makes  a  feoffment  in  fee,  which  by  this 
statute  he  might  lawfully  do,  he  passeth  an  use  in  fee-simple  to  the  feoffee  ; 
which  being  a  new  use  to  the  feoffee,  all  the  old  uses  are  discontinued,  and, 
consequently,  the  estate  of  the  feoffee  must  be  altered :  for,  were  it  the 
ancient  estate,  it  were  still  subject,  by  the  former  and  elder  limitation  of 
uses,  to  the  old  uses ;  therefore  have  the  feoffees,  by  construction,  a  new 
estate  to  the  new  uses.  But,  if  the  feoffees  themselves  had  made  a  feoff- 
ment without  consideration,  the  feoffees  had  stood  seised  to  the  old  uses, 
for  here  was  no  use  nor  new  estate. 

Gilb.  Law  of  Uses,  180,  cites  PI.  C.  350. 

By  the  statute,  cestui  que  use  has  no  power  of  alienation,  when  he  has  a 
naked  right  to  a  use,  and  not  a  use  in  esse,  unless  it  be  in  order  to  confirm 
an  estate  in  being ;  because  the  intent  of  the  statute  was  only  to  give  cestui 
que  use  a  greater  power  to  transfer  his  estate,  and  not  any  other  remedy  to 
regain  and  revest  it ;  and  unless  he  has  the  use,  he  cannot  pass  the  use, 
much  less  the  possession,  to  another. 

Gilb.  Law  of  Uses,  27;  Plow.  351. 

But,  if  the  feoffee  to  a  use  in  fee  be  disseised,  and  cestui  que  use  release 
to  the  disseisor,  this  extinguishes  the  use,  and,  by  the  statute,  bars  the  entry 
of  the  feoffee. 

Plow.  351.  For  by  the  words  of  the  act,  the  release  is  good  against  all  claiming  any 
title  or  interest  to  the  use  of  releasor.     Ibid.  Ibid. 

Also,  where  feoffees  to  a  use  are  disseisees,  and  after  the  disseisor  enfeoffs 
cestui  que  use,  who  enfeoffs  a  stranger ;  this  is  good,  and  shall  bind  the 
feoffees ;  for  the  feoffment  is  good  to  pass  the  possession,  and  right  of  the 
use,  which  he  had  in  him  :  and  the  feoffees  cannot  enter  to  revive  a  use, 
which  the  party  himself  by  his  own  act  has  extinguished. 

Gilb.  Law  of  Uses,  28. 

The  statute  likewise  is  to  be  understood  of  ceshd  que  use  that  has  a  use 
in  esse,  in  opposition  to  him  that  has  only  a  reversion  or  remainder  of 
a  use. 

If  a  feoffment  be  made  to  the  use  of  A  for  life,  remainder  to  B  in  fee,  A 
may  alien  in  fee,  because  the  feoffees  claim  the  whole  estate  for  the  use  of 
A  during  his  life,  and  he  has  the  whole  advantage  of  it ;  and  the  statute 
that  gives  the  present  possessor  of  the  use  a  power  of  alienation,  has  pro- 
vided an  immediate  remedy  for  the  remainder-man. 

Gilb.  Law  of  Uses,  28  ;  Plow.  330. 

But,  if  the  tenant  for  life  of  a  use  aliens  in  fee,  and  dies,  the  feoffees  may 
enter  on  the  alienee  ;  for,  by  the  words  of  the  statute,  the  alienation  is  good 
against  cestui  que  use  and  his  heirs,  and  persons  claiming  only  to  his  use. 
So,  when  feoffees  claim  to  the  use  of  the  remainder-man,  the  feoffment  of 
tenant  for  life,  according  to  the  authority  given  by  the  statute,  is  no  longer 
valid  to  bar  the  feoffees  of  the  entry  ;  for  their  right  is  by  the  common  law. 

Gilb.  Law  of  Uses,  29;  Plowd.  348,  Delamere  and  Barrard's  case,  the  point  re- 
solved. 

If  there  be  a  feoffment  in  fee  to  the  use  of  A  for  life,  the  remainder  to  B 
in  fee,  B  has  no  power  of  alienation  by  the  statute,  during  the  continuance 
of  the  estate  for  life,  because  the  possession  is,  as  is  said,  to  the  use  of  A 
only,  during  his  life,  and  so  the  remainder-man  has  nothing  to  do  with  the 
possession  :  and  if  the  remainder-man  should  enter  on  the  feoffees  and  make 
a  feoffment,  either  the  use  of  tenant  for  life  would  be  destroyed,  or  the 


USES  AND  TRUSTS.  117 

(B)  Properties  of  an  Estate  in  Use  at  Common  Law. 

feoffees  must  re-enter  and  create  a  particular  estate  to  themselves,  without 
being  subject  to  dower  ;  (a)  for  by  the  common  law,  every  particular  estate 
is  derived  out  of  the  fee-simple  by  the  agreement  of  the  parties  in  interest; 
but  here  are  no  parties  to  such  agreement,  and  the  statute  has  not  altered 
the  law  in  this  case. 

Gilb.  Law  of  Uses,  29;  Plow.  350;  1  Co.  128  b.  But,  though  B  cannot  make  a 
feoffment  during  the  continuance  of  the  estate  for  life,  yet,  it  seems,  he  may  sell  his 
remainder  during  the  life  of  A.     Bro.  Feoff,  to  Uses,  339  b,  44.     ||(o)  Qu.  a  "donor."|| 

But  if  there  be  a  feoffment  for  life,  remainder  in  fee,  he  in  remainder 
may  make  a  lease  for  years,  or  grant  a  rent-charge  to  begin  after  the  death 
of  tenant  for  life ;  for  he  cannot  enter  and  take  the  possession  out  of  the 
feoffee ;  but  it  is  an  executory  contract  on  which  the  statute  operates  after 
the  death  of  tenant  for  life. 

Gilb.  Law  of  Uses,  30 ;  Plow.  350  b. 

So  likewise,  if  a  lease  for  life  is  made  to  the  use  of  A,  and  afterwards  the 
reversion  is  granted  to  another  for  life  to  the  use  of  B,  and  attornment  is 
had,  and  afterwards  the  reversion  is  granted  to  another  in  fee  to  use  of  C 
in  fee,  and  attornment  is  had  ;  in  this  case  A  may  give  the  first  estate  for 
life  to  whomsoever  he  pleases,  and  B  may  grant  the  reversion  for  life  to 
whomsoever  he  pleases,  and  C  may  grant  the  reversion  in  fee  to  whomso- 
ever he  pleases. 

Plow.  350.  The  reason  is,  that  here  the  estates  are  several,  and  the  uses  go  out  of 
the  several  estates,  whereas  in  the  case  of  a  feoffment  to  the  use  of  one  for  life,  &c,  all 
the  several  uses  issue  out  of  one  estate,  viz.,  out  of  the  fee-simple,  which  is  one  same 
estate  without  division,  and  the  several  possessors  of  the  several  uses  cannot  sever  the 
estate  which  is  entire.     Plow.  he.  cit. 

Where  a  feme  covert  was  cestui  que  use,  and  she  and  her  baron  made 
feoffment ;  this  was  good  but  during  the  life  of  the  baron  only  by  equity 
and  reason,  though  the  statute  of  1  R.  3  says  nothing  of  a  feme  covert. 

Plow.  350. 

It  is  to  be  observed  farther,  with  regard  to  the  power  given  over  estates 
in  use,  that  if  cestui  que  use  makes  a  feoffment  in  fee  upon  condition,  and 
after  enters  for  the  condition  broken,  he  shall  be  seised  of  the  estate  in  the 
land ;  for  the  whole  estate  is  divested  out  of  the  feoffee  by  the  feoffment, 
and  they  cannot  enter  for  the  condition  broken,  because  no  parties  to  it. 

Gilb.  Law  of  Uses,  32  ;  1  Inst.  202  a.  But,  if  husband  seised  in  right  of  bis  wife 
make  such  feoffment,  and  re-enter  for  the  condition  broken,  there  he  shall  be  seised  in 
right  of  his  wife,  as  before.     Bro.  Fenff.  to  Uses,  338  b,  §  23. 

But,  if  cestui  que  use  in  tail  aliens  the  land  by  lease  and  release,  or  feoff- 
ment ;  this  only  binds  the  feoffees  during  his  life,  because  he  has  no  longer 
power  of  alienation.  If  the  cestui  que  use,  however,  aliens  by  fine,  this  is 
good,  and  bars  the  entry  of  the  feoffees  after  his  death,  for  that  would  dis- 
possess the  estate  in  tail  by  the  statute  of  4  H.  7.  Yet  if  he  aliens  by  re- 
covery, it  does  not  bind  the  issue,  because  he  is  not  tenant  to  the  prcecipe; 
so  that  would  be  no  bar  at  common  law  :  and  this  is  not  helped  by  any 
statute  :  for  though  a  recovery  here  be  expressly  mentioned,  and  so  it  bind 
the  party  himself,  yet  the  right  of  the  estate  in  tail  is  saved. [b) 

Bro.  Fag.  to  Uses,  337,  §  2,  338,  §  22,  ||340  a,  §  56.||  (ft)Ibid.  §  7;  Gilb.  Law  of 
Uses,  32.  ||The  references  to  Broke  show  how  the  law  fluctuated  on  this  head.  It 
appears,  however,  to  have  been  at  last  settled,  that  the  recovery  of  cestui  que  use  was 
binding  on  his  issue. j| 

If  tenant  in  tail  of  a  trust  levy  a  fine,  or  suffer  a  recovery,  this  is  an 


118  USES  AND  TRUSTS. 

(B)  Properties  of  an  Estate  in  Use  at  Common  Law. 

equitable  bar  of  the  estate,  though  the  trustees  do  not  join  in  the  recovery 
to  make  a  legal  tenant  to  the  prcecipe :  for  as  the  fine  and  recovery  pass 
the  entail  in  a  legal  estate  at  common  law,  so  they  pass  the  entail  of  a  trust 
in  the  court  of  equity.(a) 

1  Ch.  Cas.  49,  213  ;  2  Ch.  Cas.  63,  64.  ||(a)The  author  is  here  speaking  of  a  trust 
since  the  statute  of  uses.  It  is  new  settled,  that  a  fine  or  recovery  by  an  equitable 
tenant  in  tail  has  precisely  the  same  operation  as  a  fine  or  recovery  by  a  legal  tenant 
in  tail,  but  no  greater.  1  Ch.  Cas.  213;  1  Vern.  440;  2  Vern.  131,  344;  and  a  fine 
cr  recovery  is  essential  to  bar  an  equitable  entail.  1  P.  Will.  87;  3  Atk.  815;  and 
see  Gilbert  by  Sugden,  58. || 

But,  if  tenant  in  tail  of  a  trust  makes  a  mortgage,  or  acknowledges  a 
:udgment  or  statute,  and  then  levies  a  fine  and  settles  a  jointure,  the  join- 
tress  shall  hold  it  subject  to  the  mortgage  or  judgment  in  the  same  man- 
ner as  if  the  mortgagor  or  conusor  had  been  tenant  in  tail  of  the  legal 
estate,  and  after  the  mortgage  or  judgment  had  levied  a  fine  and  made  a 
jointure  ;  because  the  subsequent  declaration  of  the  use  of  the  fine  is 
merely  the  act  of  tenant  in  tail,  and  he  cannot  by  any  act  of  his  own  make 
a  subsequent  conveyance  take  place  of  one  precedent ;  and  the  rather, 
because  the  feme  claims  under  that  fee  which  tenant  in  tail  got  by  the 
recovery  or  fine  ;  and  that  fee  was  subject  to  all  the  charges  he  had  laid 
upon  it. 

iCh.  Cas.  119,  120. 

If  cestui  que  use  makes  a  lease  for  years,  reserving  a  rent,  he  shall  have 
an  action  upon  the  contract;  but  he  shall  not  avow,  because  the  legal 
estate  of  the  reversion  is  still  in  the  feoffees,  since  he  has  put  the  estate 
out  of  them  but  for  a  term ;  but  the  equitable  estate  is  in  him,  and  he  may 
dispose  of  it,  and  the  rent  passes ;  but  the  feoffees  shall  punish  for  waste 
done  by  the  tenant,  and  enter  for  a  forfeiture,  &c. 
Bro.  Feoff,  to  Uses,  337,  §  6,  338,  §  18. 

Also,  if  cestui  que  use  makes  a  lease  for  years,  reserving  a  rent,  this  shall 
go  to  his  heirs  ;  for  since  the  statute  has  given  him  power  to  make  estates 
at  law,  they  are  governed  by  the  rules  of  common  law. 
Bro.  F.  a!  Uses,  338  b,  §  18,  23,  39  ;  Gilb.  Law  of  Uses,  34. 
So,  likewise,  if  cestui  que  use  makes  a  lease  for  years,  reserving  a  rent 
with  a  clause  of  re-entry  for  non-payment  of  the  rent,  and  the  rent  is  be- 
hind, cestui  que  use  may  enter;  for  he  only  can  take  advantage  of  his  own 
condition.  And  since  the  statute  allows  the  act  of  re-entry  by  allowing 
him  power  to  make  leases,  he  shall  for  ever  keep  the  possession  against 
the  feoffees.      Quaere  tamen. 

Bro.  F.  to  A/ses,338,  §  18;  Gilb.  Law  of  Uses,  34.  ||It  seems  clear,  that  the  above 
statute  of  Richard  the  Third  does  not  apply  to  cestui  que  trusts  of  terms,  but  only  to 
seisins  in  fee;  a  question  of  importance;  since,  if  the  statute  did  so  apply,  the  assign- 
See  Sir  E. 


is  applicable. 

A  gift  of  land  for  years,  or  of  a  lease  for  years,  1o  a  use,  is  good,  not- 
withstanding the  statute  of  R.  3.  For  the  statute  is  intended  to  avoid 
gifts  in  chattels  to  uses,  to  defraud  creditors  only  ;  and  so  is  the  preamble 
and  intent  of  this  statute. 

Bro.  Feoff,  to  Uses.  340,  §  60. 


USES  AND   TRUSTS.  119 

(B)  Properties  of  an  Estate  in  Use  at  Common  Law. 

But  the  statute  does  not  give  cestui  que  use  any  power  to  devise  the  land. 
Gilb.  Law  of  Uses,  32. 
The  next  property  is, 

2.  That  it  is  descendible ,-  wherein. 
With  respect  to  the  descent  of  uses,  we  must  consider, 

1.  Of  the  Descent  of  a  Use  in  Possession. 

2.  Of  the  Descent  of  a  Use  in  Reversion. 

Concerning  the  first,  it  is  a  principle,  that  if  a  use  be  limited  to  a  man 

and  his  heirs,  the  Court  of  Chancery  will  direct  it  to  go  to  such  persons  as 

.the  common  law  has  appointed  to  represent  him,  for  the  Chancery  cannot 

alter  the  common  import  of  words,  or  set  up  rules  of  property  opposite  to 

the  rules  of  law. 

Gilb.  Law  of  Uses,  16. 

As  the  Court  of  Chancery  cannot  alter  the  descent  of  the  land,  so  it  can- 
not alter  the  law  and  custom  of  a  place  ;  for  all  immemorial  usages  are  part 
of  the  laws  of  the  land  :  and  so  if  a  man  makes  a  feoffment  in  fee  of  lands 
in  gavelkind  or  Borough-English,  without  a  consideration,  to  the  use  of 
the  feoffor  and  his  heirs,  this  shall  go  to  all  the  sons,  or  to  the  youngest, 
according  to  the  custom. 

i  Rep.  101,  Shelley's  case;  Dy.  179;  2  Roll.  Ab.  780;  1  Inst.  23;  13  Rep.  56, 
Samme's  case.    See  Hob.  31,  Counden  v.  Clerke;  Bro.  Feoff,  to  Uses,  339,  §  32. 

So  also,  if  there  is  a  custom,  that  lands  shall  go  to  the  eldest  daughter 

only,  where  there  is  no  son,  and  a  trust  in  equity  descends  upon  the  heir, 

it  shall  go  to  the  eldest  daughter  only. 

2  Roll.  Ab.  780;  10  Car.  Jones  v.  Reasby.  It  was  in  the  same  term  decreed  in 
Chancery  accordingly.     Ibid. 

As  the  Chancery  is  governed  by  rules  of  inheritance,  therefore  none  can 
make  himself  heir  but  he  that  represents  the  person  that  was  last  in  posses- 
sion ;  for  he  that  last  possessed  it  had  the  entire  dominion  and  property, 
which  none  else  can  have  but  by  standing  in  his  place ;  and  no  man  can 
stand  in  his  place  but  one  of  the  whole  blood. 

1  Inst.  14;  4  Rep.  22,  Copyhold  Cases. 

Thus,  if  lands  descend  on  the  part  of  the  mother,  and  the  party  makes  a 

feoffment  in  fee,  without  consideration,  or  reserving  this  use  to  him  and 

his  heirs,  the  use  shall  descend  to  the  heirs  of  the  part  of  the  mother ;  for 

the  land  would  have  gone  to  the  heirs  of  the  part  of  the  mother,  and  a  use 

is  but  an  estate  in  equity,  part  of  the  estate  in  the  land  ;  for  the  rule  of  law 

hat  tends  to  the  establishment  of  families  and  encouragement  of  industry, 

is,  that  those  that  take  benefit  as  representatives  shall  convey  it  all  along 

in  the  blood  of  the  first  purchaser,  from  whom  the  benefit  was  derived ; 

and  the  use  and  possession  was  derived  from  the  mother,  and  the  use  was 

never  parted  with,  but  the  possession  only ;  so  the  use  must  be  all  along 

conveyed  to  the  heirs  on  that  side. 

1  Inst.  13  a;  2  Ro.  Ab.  780;  13  Rep.  56,  Samme's  case;  Bro.  Feoff,  to  Uses,  338  a, 
§  10.     But  see  Hob.  31,  Counden  v.  Clerke,  and  Dy.  134. 

It  is  to  be  observed,  likewise,  that  there  is  a  possessio  fratris  of  a  use, 
which  follows  the  analogy  of  descents  at  law  ;  and  so  if  a  man  seised  in 
fee  of  a  use  had  issue  a  son  and  a  daughter  by  one  venter,  and  a  son  by 
another  venter,  and  devises  it  for  years,  and  dies,  and  the  son  dies  during 


120  USES  AND  TRUSTS. 

(B)  Properties  of  an  Estate  in  Use  at  Common  Law. 

the  term,  the  daughter  shall  have  it,  and  not  the  son :  otherwise  it  had 
been,  if  he  had  devised  it  for  life. 

Gilb.  Law  of  Uses,  18  ;  1  Rep.  121,  Chudleigh's  case.  ||See  Bac.  on  Uses,  p.  11 ; 
1  Black.  Com.  137.|J 

Also,  if  a  man  for  a  valuable  consideration  purchases  lands,  or  the  use 
of  them  to  himself,  they  shall  descend  to  his  heirs :  for  there  wants  not  the 
word  heirs  to  create  an  inheritance  in  a  use :  for  it  is  equity,  that  a  person 
who  gave  a  consideration  for  the  fee  should  have  it ;  and  that  is  not  setting 
up  any  other  rules  of  property  opposite  to  the  rules  of  law,  but  mitigating 
and  dispensing  with  the  rules  of  law,  in  particular  cases,  where  they  should 
happen  to  shelter  dishonesty  and  oppression  ;  but  now,  since  the  statute, 
no  inheritance  can  be  raised  without  the  word  heirs,  because  now  the  uses, 
as  will  be  shown,  are  transferred  into  possession,  and  must  be  governed  by 
the  rules  of  possession  at  common  law,  as  to  the  words  that  create  new 
estates.(a) 

Bro.  Feoff,  to  Uses,  337  b,  4  ;  1  Rep.  100  b,  Shelley's  case  ;  Gilb.  Law  of  Uses,  17, 
18.  ||(a)  But  yet,  as  before  the  statute,  if  A  agree  to  sell  a  fee-simple  estate  to  B,  the 
purchaser,  immediately  after  the  contract,  is  seised  of  the  fee  in  view  of  equity,  although 
no  words  of  inheritance  were  inserted.     Gilb.  on  Uses,  by  Sugden,  30.|j 

2.  Of  the  Descent  of  a  Use  in  Reversion. 

In  regard  to  descents  of  this  kind,  they  are  governed  by  the  following 
rules : 

Where  a  man  has  an  estate  in  himself,  and  limits  an  estate  to  his  right 
heirs,  he  is  seised  of  the  whole  estate. 

In  the  same  manner,  where  a  man  has  a  use  in  himself,  and  limits  a  use 

to  his  own  right  heirs,  the  same  use  is  in  him  still.     The  reason  is,  because 

ancestor  and  heir  are  correlative ;  and  so  whoever  represents  me  as  to  my 

estate  vested  in  him  after  my  death,  I  represent  him  during  my  life  as  to 

that  estate  ;  and,  consequently,  giving  an  estate,  already  in  me,  to  my  heir, 

is  not  departing  with  it,  for  it  is  a  disposition,  in  other  words,  to  myself, 

and  so  all  things  remain  in  statu  quo. 

1  Vent.  380;  Pibus  v.  Mitford,  Gilb.  Law  of  Uses,  19;  |jCo.  Lit.  22  b;  15  Ves.  J. 
365.|| 

Thus,  if  a  man  seised  of  lands  in  fee,  makes  a  gift  in  tail,  or  a  lease  for 
life,  remainder  to  his  own  right  heirs,  they  take  by  descent,  as  in  the  old 
reversion. 

1  Inst.  22  b;  Gilb.  Law  of  Uses,  20.  [jThis  rule  applies  equally  to  a  derisebys. 
man  to  his  own  right  heirs,  though  termed  a  remainder,  and  it  will  require  a  clear  and 
manifest  intention  to  make  the  words  operate  as  words  of  purchase.  11  East,  548; 
12  East,  589 ;  Gilb.  on  Uses,  by  Sugden,  32. || 

Also,  if  A,  seised  of  lands  in  fee,  grants  them  by  fine  during  his  own  life, 
the  remainder  to  his  own  right  heirs,  the  reversion  is  in  him,  and  he  may 
grant  it. 

Gilb.  Law  of  Uses,  20.     ||See  edit,  by  Sugden,  33,  n.  6. 

So  likewise,  in  the  case  of  a  fine  sur  conuzance  de  droit  que  il  et  sa  feme 
ad  de  son  done  to  the  husband,  with  a  remainder  to  the  conusor  for  life,  re- 
mainder to  the  right  heirs  of  the  husband,  they  are  in  of  the  old  reversion, 
and  the  wife  surviving  shall  have  it  for  life. 

Gilb.  Law  of  Uses,  20 ;  Dy.  237. 

Also,  if  a  man  makes  a  feoffment  without  a  valuable  consideration,  to 
the  use  of  himself,  for  forty  years,  the  remainder  to  B  in  tail,  the  remainder 


USES  AND  TRUSTS.  121 

(B)  Properties  of  an  Estate  in  Use  at  Common  Law. 

to  his  own  right  heirs ;  the  feoffor  is  in  of  the  old  reversion,  and  he  may 

devise  it,  for  a  feoffment  without  consideration  does  not  dispose  of  the  use 

thereof;  the  old  use  is  in  him  still. 

E.  of  Bedford's  case,  Poph.  3;  1  Moor,  718,  719,  S.  C. ;  1  Rep.  130,  Chudleigh's 
case. 

But  it  hath  been  held,  that  if  the  feoffment  were  made  upon  a  valuable 
consideration,  inasmuch  as  that  it  is  a  disposition  of  the  use,  there  is  an  estate 
m  the  feoffees  to  retain  it  till  the  death  of  the  feoffors ;  and  this  is  an  estate 
of  freehold,  and  affords  a  tenant  to  the  prcecipe,  and  an  estate  to  support  a 
contingent  remainder. 

1  Inst.  22  b,  23  a;  Gilb.  Law  of  Uses,  21. 

Also,  where  I  limit  a  use,  already  in  me,  to  my  own  representatives,  and 
add  a  qualification  to  those  representatives ;  though  this  be  no  departing 
with  the  estate,  because  there  are  not  words  to  convey  it  out  of  myself,  yet 
there  is  an  alteration  of  the  estate  in  myself;  and  the  use  shall  alter  and 
descend  to  my  heirs  that  came  under  that  particular  distinction  and  qualifi- 
cation ;  because  the  use  has  always  been  changed  and  modified  according 
to  the  intent  of  the  parties  who  have  the  interest ;  and  such  a  particular 
estate  shall  be  supposed  in  them,  as  may  best  answer  the  intent,  ut  res 
valeat. 

Gilb.  Law  of  Uses,  20. 

It  is  to  be  observed,  likewise,  with  respect  to  remainders,  that  where  a 
man  limits  an  estate  of  freehold  to  me  for  life,  with  a  remainder  to  my  heirs, 
though  after  ever  so  many  particular  estates,  the  remainder  is  vested  in  me 
for  three  reasons.  First,  because  otherwise  you  construe  the  grant  most  in 
favour  of  the  grantor,  and  let  him  into  the  reversion  during  die  contingency, 
to  punish  waste  and  enter  for  the  forfeiture.  Secondly,  because  the  whole 
advantage  must  be  intended  to  me  when  I  am  first  named  to  take  the  same 
sort  of  estate  in  the  conveyance,  and  the  benefit  is  not  designed  to  any  other 
particular  conveyance,  but  to  all  other  persons  that  bear  the  character  of  my 
representatives ;  so  that  the  limitation  is  for  my  sake,  and  only  intends  to 
enlarge  my  estate  after  the  particular  estates  are  worn  off,  yet  cannot  be 
construed  in  the  same  manner  as  where  an  estate  is  limited  to  A,  the 
remainder  to  the  right  heirs  of  B,  because  there  is  nothing  in  the  last  case 
to  lead  the  mind  to  such  an  interpretation  ;  for  there  is  no  benefit  originally 
designed  to  B,  but  to  his  heirs  primarily  ;  and  so  the  heir  takes  as  a  pur- 
chaser. But,  if  the  same  sort  of  estate  be  not  limited  to  the  ancestor  as  to 
the  heir,  the  heir  must  take  by  purchase  ;  for  it  is  plain  the  donor  designed 
him  an  original  benefit,  quite  different  from  what  he  designed  the  ancestor. 
Thirdly,  because  when  the  particular  estates  are  worn  off,  they  are  as  if 
they  had  never  been ;  and  so  the  heir  should  claim  by  descent,  as  in  his 
better  title,  and  as  of  the  dying  seised  of  his  ancestors.  Another  reason  of 
this  law  is,  because  it  must  be  a  contingent  remainder,  or  a  remainder  vested; 
but  it  would  not  be  a  contingent  remainder,  because  of  necessity  it  must  be 
in  the  ancestor  and  the  person  that  represents  him,  and  so  construed  a  re- 
mainder vested.     Thus, — 

1  Vent.  372  to  382  ;  Gilb.  Law  of  Uses,  21. 

If  J  S  makes  a  feoffment  to  the  use  of  A,  the  remainder  to  B,  the 
remainder  to  the  right  heirs  of  A,  the  remainder  is  vested  in  A,  and  his  heirs 
claim  by  descent. 

Gilb.  Law  of  Uses,  23;  Cro.  Car.  24  a. 

Vol.  X.— 16  L 


122  USES  AND  TRUSTS. 

(B)  Properties  of  an  Estate  in  Use  at  Common  Law. 

But  if  J  S  makes  a  feoffment  to  the  use  of  A  for  a  term  of  years,  the 
remainder  to  B  T,  the  remainder  to  the  right  heirs  of  A ;  the  remainder  is 
not  vested  in  A,  but  his  right  heirs  take  by  purchase. (a) 

Moor.  720,  Earl  of  Bedford's  case;  Gilb.  Law  of  Uses,  23.  ||(a)  Because  A  takes 
a  chattel  interest  only,  and  not  a  freehold. I| 

If  an  estate  be  limited  to  A  for  life,  remainder  to  the  heirs  male  of  the 
body  of  A,  and  to  the  heirs  male  of  such  heir  male,  there  is  a  trust  executed 
in  A,  because  this  is  within  the  rule  ;  for  here  an  estate  is  limited  to  A  for 
life,  with  a  remainder  to  his  heirs  ;  and  so  the  word  heirs  is  not  a  name  of 
purchase,  but  of  limitation. 

1  Inst.  22  b  ;  2  Rep.  91  b,  cites  Fenwick  v.  Mitford.  |]See  Sir  E.  Sugden's  learned 
note  on  this  passage,  Gilb.  Law  of  Uses,  39. || 

But  if  an  estate  be  devised,  or,  per  Hale,  be  conveyed  to  A  for  life,  the 
remainder  to  his  next  heir  male,  and  to  the  heirs  male  of  the  body  of  such 
heir  male  ;  there  is  an  estate  only  for  life  in  A,  and  a  contingent  remainder 
in  his  heir,  as  a  purchaser,  which  vests  so  instante  that  the  particular  estate 
determines ;  for  though  there  be  an  estate  for  life  in  A,  yet  the  remainder 
is  limited  to  his  heir  only,  in  the  singular  number  only ;  and  heir  in  the 
singular  number  only  is  a  word  of  purchase,  and  not  of  limitation. 

1  Rep.  66,  67,  Archer's  case ;  Gilb.  Law  of  Uses,  24 ;  1  Inst.  22  b.  ||The  decision 
depended  principally  on  the  superadded  words  of  limitation. || 

Likewise,  if  an  estate  be  limited  to  a  man  and  his  heir,  he  has  only  an 
estate  for  life ;  for  it  cannot  go  in  perpetual  possession,  because  no  more 
representatives  than  one  only  is  expressed.  The  heir  cannot  take  by  way 
of  remainder,  because  it  is  limited  by  a  conjunction  copulative ;  and  a  joint- 
tenant  he  cannot  be,  because  nemo  est  hares  viventis. 

Gilb.  Law  of  Uses,  24 ;  1  Inst.  8  b. 

But  if  one  devises  an  estate  to  a  man  and  his  heir,  a  fee-simple  passes, 
and  heir  there  is  taken  as  nomen  collectivum,  to  answer  the  intent  of  the 
party,  which  appears  to  be,  that  he  intended  to  pass  a  fee,  as  if  it  had  been 
limited  to  the  devisee  and  his  heirs  for  ever. 

Gilb.  Law  of  Uses,  24;  1  Inst.  8  b. 

||  Where  there  was  a  devise  to  a  woman  and  her  heirs  during  their  lives, 
and  she  had  two  children  born  before,  and  a  third  born  after  making  the 
will,  it  was  held,  that  the  latter  words  were  repugnant  to  the  others,  and 
that  she  took  an  estate  of  inheritance. 

Doe  dem.  Cotton  v.  Stenlake,  12  East,  R.  515.  || 

So,  if  an  estate  be  devised  to  A  during  the  life  of  B,  in  trust  for  B,  and 
after  the  decease  of  B  to  the  heirs  male  of  the  body  of  him  the  said  B  now 
living,  that  is  a  remainder  vested  in  the  heirs  of  B  ;  for  heir  now  living,  in 
that  devise,  must  be  taken  as  a  periphrasis  of  the  heir  apparent,  who  is 
called  heir  in  law,  as  may  be  observed  by  the  words  quarejllium  et  heeredem 
rapuit. 

Gilb.  Law  of  Uses,  24  ;  2  Vent.  311,  Burchett  v.  Durdant.  ||See  Sir  E.  Sugden's 
note,  Gilb.  Law  of  Uses,  47. || 

The  next  property  of  a  use  is, 

3.  That  it  is  devisable. 

The  reason  why  lands  were  not  originally  devisable,  was,  because  the 
ceremony  of  livery  was  required  to  the  transmutation  of  the  possession, 
which  is  not  necessary  to  the  disposal  of  a  use ;  for  livery  is  to  give  notice 


USES   AND   TRUSTS.  123 

(B)  Properties  of  an  Estate  in  Use  at  Common  Law. 

against  whom  the  prcecipe  is  to  be  brought,  and  the  prcecipe  is  only  of  an 
estate  of  freehold. 

Treatise  of  Tenures,  77 ;  1  Rep.  123  b  ;  Gilb.  Law  of  Uses,  35.  But  by  32  H.  8, 
c.  1,  and  34  H.  8,  c.  5,  lands,  &c,  are  devisable  by  will. 

If  a  man  makes  a  feoffment  in  fee  to  the  use  of  his  last  will,  the  feoffor 
has  it  to  the  use  of  himself  and  his  heirs  ;  for  until  a  man  has  actually  dis- 
posed of  the  use,  the  use  is  in  him  only ;  and  if  he  devises,  the  parties  must 
claim  their  interest  by  the  devise. 

6  Rep.  18 ;  Sir  Edw.  Clere's  case;   1  Inst.  Ill  b  ;  Bulst.  200,  Semain's  case. 

But  if  a  man  makes  a  feoffment  in  fee  to  the  use  of  such  person  and 
persons,  and  of  such  estate  and  estates  as  he  shall  appoint  by  his  last  will ; 
there,  by  the  words  of  the  conveyance  he  has  a  qualified  fee,  till  declara- 
tion and  limitation  according  to  his  power  reserved  ;  and  it  is  only  the 
office  of  the  will  to  nominate  ;  for  the  interest  is  transferred  and  disposed 
of  by  the  feoffment.  But,  where  there  are  no  words  of  disposition,  &c, 
in  the  feoffment,  there  the  parties  must  claim  by  the  devise. 

fi  Rep.  18,  Sir  Edward  Clere's  case;  1  Inst.  111b;  Gilb.  Law  of  Uses,  33.  ||This 
is  a  case  since  the  statute  of  uses.  The  fee  results,  and  is  vested,  subject  to  be  di- 
vested by  an  appointment.  In  what  cases  a  disposition  shall  take  effect  under  the 
power  or  by  force  of  the  interest,  see  Sug.  Treat,  of  Powers,  p.  231.|| 

If  a  copyholder  surrenders  to  the  use  of  his  last  will,  the  land  is  still  in 
the  copyholder,  and  he  may  dispose  of  it  by  an  act  in  his  lifetime  ;  if  he 
does  not  by  any  will,  it  shall  go  to  his  heirs  ;  if  he  makes  a  will,  it  passes 
by  the  surrender,  and  not  by  the  will ;  for  the  property  of  the  copyhold  is 
not  altered  by  a  private  act  of  the  tenant,  but  by  an  open  and  solemn  act 
in  the  lord's  court.(a)  But  at  common  law,  the  use  of  the  land  may  pass 
by  a  devise,  as  is  said  ;  and  the  freehold  itself  since  the  statute  ||  of  wills.  || 

4  Rep.  23,  Copyhold  cases;  1  Leon.  174,  Bulleyn  and  Grant's  case;  Cro.  Eliz. 
441,  Fitch  v.  Hockley.  \\(a)  This  has  no  relation  to  the  subject  before  us.  Copy- 
holds are  not  within  the  statute  of  uses,  because  the  transmutation  of  possession  by 
the  sole  operation  of  the  statute,  without  allowance  of  the  lord,  would  tend  to  the 
lord's  prejudice.     Rowden  v.  Malster,  Cro.  Car.  44;  and  see  5  Term  R.  lll.|| 

Also,  if  a  man  suffers  a  recovery  to  the  use  of  his  last  will,  he  may  dis- 
pose of  the  estate  by  a  conveyance  de  novo  during  his  life  ;  but  he  cannot 
during  his  life  limit  new  uses  on  the  old  recovery,  so  as  to  be  thereby  bound 
from  any  alteration :  because  the  whole  interest  of  the  recovery  was  declared 
to  be  to  the  use  of  his  will ;  which  is  changeable  in  its  nature. 

Hob.  349,  Earl  of  Ormond's  case;  Gilb.  Law  of  Uses,  36. 

Likewise,  if  a  man  makes  a  feoffment  in  fee  to  the  use  of  his  last  will, 

and  in  the  deed  he  expresses  the  use  of  the  will  to  be  to  himself  for  life, 

and  then  to  his  son  in  tail,  and  afterwards  makes  a  lease  for  years,  and 

dies,  this  shall  bind  the  son  ;  for  it  being  expressly  declared  to  the  use  of 

his  will,  it  supposes  a  power  in  him  to  change  it. 

Bro.  F.  al  Uses,  337,  §  1  ;  19  H.  8,  c.  12.  But  where  the  use  is  declared  upon  the 
livery  without  the  word  "  will,"  there,  he  cannot  alter  his  will.     Bro.  loc.  cit. 

If  cestui  que  use  devises,  that  his  feoffees  may  alien  the  land  to  J  S,  the 
feoffees  may  enfeoff  A,  and  B  may  alien  to  J  S. 

Bro.  F.  338,  §  12. 

Likewise  if  cestui  que  use  devises,  that  his  feoffees  should  alien  the  land 
for  payment  of  his  debts,  the  creditors  may  compel  him  in  the  Court  of 
Chancery  to  do  it. 

Bro.  F.  338,  §  12. 


124  USES   AND  TRUSTS. 

(B)  Properties  of  an  Estate  in  Use  at  Common  Law. 

So  also,  if  cestui  que  use  devises  that  his  feoffees  should  alien  the  land, 
the  heir  shall  take  the  profits  till  alienation,  and  if  they  do  not  alien,  he 
shall  have  the  land  for  ever. 

Bro.  F.  338,  §  12.  ||See  a  translation  of  this  case  from  the  Year-Books,  Sug.  on 
Pow.  App.  No.  1,  p.  535.|| 

4.   That  it  is  not  extendible,  or  Jlssets. 

The  reason  why  a  use  was  not  extendible  is,  because  there  is  no  process 
at  law  but  upon  estates  at  law  ;  and  uses  are  merely  creatures  of  equity, 
on  which  the  common  law  can  award  no  execution  ;  and  they  were  not 
assets,  because  they  go  in  the  course  of  inheritance,  and  not  to  executors. 

1  Rep.  121  b,  Chudleigh's  case;  1  Ch.  Cases,  14,  Bennet  v.  Box;  Ibid.  128,  Pratt 
v.  Colt. 

But  if  a  term  be  limited  to  attend  a  fee-simple,  this  shall  be  assets  for 
the  payment  of  just  debts  ;  for  the  Court  of  Chancery  will  not  carry  it  out 
of  its  due  course,  where  there  is  any  prejudice  or  inconvenience. 

Hardr.  489,  The  Attorney-General  v.  Sir  Geo.  Sands.  |]The  term  shall  be  equally 
charged  with  the  inheritance,  but  not  to  a  greater  extent;  therefore  it  shall  not  be  per- 
sonal assets  for  payment  of  debts.  Thmxton  v.  Attorney-General,  1  Vern.  340;  Tif- 
fin v.  Tiffin,  1  Vern.  1.  The  rule  is  the  same,  though  the  term  is  attendant  only  by 
construction  of  equity.     Baden  v.  Earl  of  Pembroke,  2  Vern.  52,  213.1] 

Likewise  by  the  stat.  of  R.  3,  it  is  held  extendible  upon  a  statute  staple, 
or  merchant ;  for  this  is  in  the  nature  of  a  grant,  or  lease  for  years  ;  and 
grants  of  leases  are  made  good  against  cestui  que  use  and  the  feoffees,  by 
the  statute. 

Bro.  F.  al  Uses,  339,  §  25  ;  1  Co.  131  b,  Chudleigh's  case. 

But  since  the  statute  of  frauds  and  perjuries,  uses  seem  to  be  assets  in 
the  heir  for  the  payment  of  just  debts,  the  heir  being  obliged  to  pay  all 
just  debts  out  of  a  real  estate  that  descends  from  the  ancestor. 

1  Chan.  R.  128,  Pratt  v.  Colt;  Gilb.  Law  of  Uses,  38.  ||But  it  is  questionable 
whether  execution  can  be  sued  after  the  trustee,  in  whom  the  estate  was  vested,  has 
conveyed  it  to  a  purchaser.     See  Gilb.  Law  of  Uses,  by  Sug.  77. || 

5.   That  it  is  not  forfeitable. 

A  use  in  fee  could  npt  be  forfeited  for  felony ;  for  in  case  of  felony  the 
lands  are  cast  on  the  lord  of  whom  they  are  holden,  for  want  of  heirs  ; 
but  a  use  is  holden  of  nobody. 

Hardr.  4G6,  4G7,  488,  -189;  Gilb.  Law  of  Uses,  38. 

Neither  could  it  be  forfeited  for  treason  ;  for  all  tenures  are  forfeited  by 
the  breach  of  fidelity  and  duty  owed  to  the  lord  ;  for  under  that  condition 
the  tenants  take  their  estates,  and  consequently  all  breaches  of  allegiance 
forfeit  the  estate  to  the  king,  since  it  originally  came  from,  and  is  still 
holden  of  him  ;  but  a  use  is  holden  of  nobody. 

Hardr.  492,  495;  Gilb.  Law  of  Uses,  39.  But  the  law  in  this  point  is  altered  by 
26  H.  8,  c.  13;  33  H.  8,  c.  20.  And  see  Hale's  P.  C.  vol.  i.  240,  247,  et  sequent.  ||In 
Burgess  v.  Wheate,  1  Blackst.  123,  it  was  decided  by  Lord  Keeper  Henley,  and  Sir 
Thomas  Clarke,  against  Lord  Mansfield,  that  upon  the  death  of  cestui  que  trust  with- 
out heir  the  estate  does  not  escheat,  but  shall  be  retained  by  the  feoffee. || 

But,  if  a  term  be  limited  in  trust,  and  cestui  que  trust  commit  treason  or 
felony,  the  term  is  forfeited  ;  for  the  personal  property  goes  with  the  per- 
sons ;  and  when  the  possession  is  forfeited,  the  party  is  incapable  of  per- 


USES  AND  TRUSTS.  125 

(C)  The  Inconveniences  of  Uses. 

sonal  property,  consequently,  the  right  is  in  the  public,  and  the  king  has 
the  use  of  the  term  in  this  case. 

Allen,  16,  Holland's  case;  Hardr.  366,  495 ;  Gilb.  Law  of  Uses,  39. 

Yet,  if  a  term  be  limited  to  attend  the  inheritance  in  trust,  it  is  not  for- 
feited for  felony,  because  it  does  not  vest  in  his  person  and  go  to  his  execu- 
tors, but  belongs  to  the  inheritance,  like  the  charters  which  are  not  forfeited. 

Hardr.  495,  Attorney-General  v.  Sands ;  Gilb.  Law  of  Uses,  39. 

But  no  use  can  be  forfeited  at  this  day,  unless  it  be  of  a  chattel  or  a 
lease  ;  for  all  uses  of  frank-tenement  are,  by  the  statute  of  27  H.  8,  executed 
in  possession,  as  will  be  shown  hereafter  ;  and  so  there  is  no  use  which 
can  be  forfeited,  and  it  would  be  in  vain  to  give  uses  where  no  use  exists 
at  the  time. 

And.  294,  pi.  302,  Sir  Francis  Inglefield's  case. 

6.  A  Woman  is  not  dowahle  of  a  Use. 

A  feme  was  not  dowable  of  a  use,  for  the  privilege  of  dower  was  only 
to  freeholders'  wives ;  now  a  use,  being  no  freehold,  was  not  within  that 
law,  and  the  Chancery  allows  the  feoffees  to  be  seised  to  nobody's  use  but 
those  that  are  particularly  named  in  the  trust. (a) 

1  Rep.  122  a;  Gilb.  Law  of  Uses,  25.  Neither  can  a  husband  be  tenant  by  the 
curtesy  of  a  use.  1  Rep.  122.  ||(ffi)This  rule  still  prevails  as  to  trusts,  of  which  the 
wife  is  not  dowable.  2  P.  Will.  708;  Forr.  138;  Sug.  Ven.  &  P.  605,  (3d  edit.;) 
2  Atk.  525  ;  1  Black.  123.  But  it  is  firmly  settled  that  a  husband  shall  have  curtesy 
of  a  trust.  1  P.  Will.  108  :  and  even  of  money  directed  to  be  laid  out  in  land,  because 
in  equity  it  is  considered  as  laid  out.  2  Vern.  536  ;  1  Ves.  174.  The  rule  as  to  the 
exclusion  of  dower  appears  to  have  arisen  from  the  common  practice  among  convey- 
ancers to  place  the  legal  estate  in  trustees,  to  prevent  dower;  and,  therefore  to  let  in 
dower  would  have  created  confusion.  3  P.  Will.  234  ;  and  see  Gilb.  Law  of  Uses  by 
Sug.  49.|| 

And  that  being  the  case,  it  became  a  practice  for  the  father  and  friends 
of  the  woman  to  procure  the  husband  to  take  an  estate  from  the  feoffees, 
or  others  seised  to  his  own  use,  for  life ;  and  then  to  the  use  of  his  wife, 
for  life,  before  or  after  the  marriage  ;  which  was  the  original  jointures. 

4  Rep.  1  b,  Vernon's  case.  After  the  27  H.  8,  for  transferring  uses  into  possession, 
the  wives  would  have  been  entitled  to  their  dower  of  the  husband's  seisin,  as  well  as 
to  their  jointure,  which  occasioned  the  adding  of  the  branch  concerning  jointures  to  the 
27  H.  8.  See  title  Dower  and  Jointure,  Vol.  iii. ;  ||and  see  note,  4  Co.  1  b,  edit. 
Thomas  and  Fraser;  Co.  Lit.  36  b,  37  a;  1  Cru.  Dig.  tit.  7,  c.  1,  §  27. || 

(C)  The  Inconveniences  of  Uses. 

Such  was  the  nature,  property,  and  operation  of  uses  at  common 
law,  and  since  the  statute  of  R.  3.  And  though  these  uses  had  a  very 
equitable  beginning,  yet,  like  all  new  models  of  general  schemes  of  order- 
ing property,  they  introduced  a  great  many  unforeseen  inconveniences,  and 
subverted  in  many  instances  the  institution  and  policy  of  the  common  law. 
For — 

Estates  passed  by  way  of  use,  from  one  to  another,  by  bare  words  only, 
without  any  solemn  ceremony  or  permanent  record  of  the  transaction  : 
whereby  a  third  person  that  had  right  knew  not  against  whom  to  bring 
action. 

See  the  preamble  to  stat.  27  H.  8,  c.  10 ;  1  Rep.  123,  124  ;  1  And.  323  ;  Poph.  73. 

Uses  likewise  passing  by  will,  the  heirs  were  disinherited  by  the  inad- 

l2 


126  USES  AND  TRUSTS. 

(D)  Alterations  introduced  by  27  Hen.  8,  c.  10. 

vertent  words  of  dying  persons.  Lords  also  lost  their  wardships,  reliefs, 
marriages,  and  escheats ;  the  trustees  letting  cestui  que  use  continue  the 
possession,  whereby  the  real  tenants  that  held  the  lands  could  not  be  dis- 
covered. The  king  likewise  lost  the  estates  of  aliens  and  criminals ;  for 
they  made  their  friends  trustees,  who  kept  possession,  and  secretly  gave 
them  the  profits  so  as  the  use  was  undiscovered.  Purchasers  were  inse- 
cure ;  for  the  alienation  of  cestui  que  use  in  possession  was  at  common  law 
a  disseisin,  and  though  the  1  R.  3,  c.  1,  gave  him  power  to  alien  what  he 
had,  yet  the  feoffees  might  still  enter  to  revest  a  remainder  or  contingent 
use,  which  were  never  published  by  any  record  or  livery,  whereby  the 
purchaser  could  know  of  them.  Estates  likewise  created  by  law  in  con- 
sideration of  marriage,  such  as  tenancies  in  dower  and  by  curtesy,  were 
defeated,  notwithstanding  the  1  R.  3.  Add  to  these,  that  the  use  was  not 
subject  to  the  payment  of  debts,  and  that  many  lost  their  rights  by  perjury, 
in  averment  of  secret  uses.  And  lastly,  that  uses  might  be  allowed  in 
mortmain. 

Gilb.  Law  of  Uses,  72. 

To  remedy  these  inconveniences,  the  legislature  framed  the  statute  of 
27  H.  8,  c.  10,  which  leads  us  to  consider, 

(D)  The  Alterations  introduced  with  respect  to  the  Conveyances   to  Uses  by  the 

27  H.  8,  c.  10,  which 

Enacts  that,  Where  any  person  or  persons  (a)  stand  or  be  seised,(b)  or 
at  any  time  hereafter  shall  happen  to  be  seised  of  or  in  any  honours,  castles, 
manors,  lands,  tenements,  rents,  services,  reversions,  remainders,  or  other 
hereditaments, (c)  to  the  use,  confidence  or  trust  of  any  other  person  or  per- 
sons, or  of  any  body  politic,  by  reason  of  any  bargain,  sale,  feoffment,  fine, 
recovery,  covenant,  contract,  agreement,  will,  or  otherwise  by  any  manner  of 
means  whatsoever  it  be;  in  every  such  case,  all  and  every  such  person  and 
persons,  that  have  or  shall  have  any  such  use  or  trust  in  fee-simple,  tail,  for 
life,  or  years,  or  otherwise,  or  any  use,  confidence,  or  trust  in  remainder  or 
reverter,  (d)  shall  from  henceforth  stand  and  be  seised  and  be  deemed  and 
judged  in  lawful  seisin,  estate  and  possession  (e)  of  and  in  the  same  honours, 
fyc,  to  all  intents,  Sfc,  of  and  in  such  like  estate  as  they  had  or  shall  have 
in  the  use,  Sfc,  of  and  in  the  same;  and  the  estate,  title,  right,  and  posses- 
sion of  such  person  or  persons,  as  were  or  hereafter  shall  be  seised  of  any 
lands,  tenements,  or  hereditaments,  to  the  use,  confidence,  or  trust  of  any 
such  person  or  persons,  or  of  any  body  politic,  be  from  henceforth  clearly 
deemed  and  adjudged  to  be  in  him  or  them  that  have  or  hereafter  shall  have 
any  such  use,  confidence,  or  trust,  after  such  quality,  manner,  form,  and  con- 
dition as  they  had  before  in  or  to  the  use,  confidence,  or  trust  that  was  in 
them. 

(a)  27  H.  8,  c.  10.  The  word  "person"  excludes  all  corporations.  Lord  Bacon's 
Reading  on  the  Statute  of  Uses,  334,  335  ;  ||Gilb.  Law  of  Uses,  7,  and  Sir  E.  Sudden's 
note.||  (i) This  word  "seised,"  excludes  chattels  and  rights.  ||See  Gilb.  on  Uses, 
by  Sugden,  78,  79;  and  see  1  Comyn,  270. I|  It  likewise  excludes  contingent  uses, 
because  the  seisin  cannot  be  but  to  a  fee-simple  of  a  use ;  and  when  that  is  limited,  the 
seisin  of  the  feoffee  is  spent.  Lord  Bacon's  Reading  on  the  Statutes  of  Uses,  335. 
(c) This  word  "hereditaments,"  is  to  be  understood  of  those  things  whereof  an  in- 
heritance is  in  esse;  for  if  I  grant  a  rent-charge  dc  novo  for  life  to  a  use,  this  is  good 
enough;  yet  there  is  no  inheritance  in  being  of  this  rent.  It  likewise  excludes  annui- 
ties and  uses  themselves;  so  that  a  use  cannot  be  to  a  use.  Lord  Bacon's  Reading  on 
the  Statute  of  Uses,  335.     (d)  The  statute  having  spoken  before  of  uses  in  fee-simple, 


USES  AND   TRUSTS.  127 

(D)  Alterations  introduced  by  27  Hen.  8,  c.  10. 

in  tail,  for  life  or  years,  addeth,  or  otherwise  "  in  remainder  or  reverter,"  whereby  it  is 
manifest  that  the  first  words  are  to  be  understood  of  uses  in  possession.  Lord  Bacon's 
Reading  on  the  Statute  of  Uses,  337.  (e)The  words  "lawful  seisin,  state,  and  pos- 
session/' intended  not  a  possession  in  law  only,  but  a  seisin  in  tail ;  not  a  title  to 
enter  into  the  land,  but  an  actual  estate.  Lord  Bacon's  Reading  on  the  Statute  of 
Uses,  338. 

§  2.  Where  divers  persons  shall  be  jointly  seised  to  the  use  or  trust  of  any 
of  them,  those  which  shall  have  such  use  or  trust  shall  be  adjudged  to  have 
only  such  estate,  possession,  and,  seisin  of  the  lands,  #c,  as  they  had  in  the 
use  or  trust,  saving  to  all  persons  other  than  those  which  be  seised  to  any  use 
or  trust,  all  right,  fyc. 

§  3.  Mso  saving  to  all  those  persons  which  shall  be  seised  to  any  use,  all 
such  former  rights  as  they  might  have  had  to  their  own  proper  use. 

Upon  this  saving  clause  the  following  case  has  been  determined.  The  husband 
being  seised  in  fee°made  a  lease  to  O  and  S,  but  it  was  in  secret  confidence  for  the 
preferment  of  his  wife ;  and  afterwards  he  made  a  feoffment  to  O  and  others  of  the 
same  land  to  other  uses.  It  was  decreed  by  the  advice  of  Wray,  Anderson,  and  Man- 
wood,  that  the  term  was  not  extinguished  by  this  feoffment,  by  reason  of  the  proviso; 
and  because  O  had  this  lease  to  his  own  use,  it  is  not  extinguished  by  the  feoffment 
which  he  took  to  the  use  of  another.  Mo.  196,  pi.  345,  Cheyney's  case  ;  2  And.  192, 
pi.  9,  S.  C.  says,  the  lease  was  made  really  in  trust  to  the  use  of  the  wife,  and  edu- 
cation of  their  sons  and  daughters,  notwithstanding  that  divers  covenants  were  therein 
contained,  and  a  rent  was  reserved ;  and  says,  that  the  feoffment  made  afterwards  was 
to  the  use  of  the  husband  himself  and  his  said  wife  for  their  lives,  with  remainder 
over;  and  that  the  same  was  held  accordingly. 

§  4,  5.  Where  any  be  seised  to  any  use  or  intent  that  another  shall  have 
a  yearly  rent  out  of  the  same  lands,  cestui  que  use  of  the  rent  shall  be 
deemed  in  the  possession  thereof  of  like  estate  as  he  or  she  had  that  use. 

A  man,  in  consideration  of  natural  love  and  affection,  covenanted  to  stand  seised  to 
the  use  of  himself  for  life,  the  remainder  to  B  his  son  in  tail,  and  to  the  intent  that  B 
should  have  a  rent  issuing  out  of  the  lands,  during  the  life  of  A  ;  B  the  son  dies,  and 
his  executors  brought  debt  for  the  arrears  of  the  rent.  It  was  resolved  and  adjudged, 
that  by  these  word's  of  the  statute  B  in  this  case  had  a  good  rent,  as  well  upon  cove- 
nant as  by  a  feoffment,  or  bargain  and  sale.     Sir  W.  Jo.  179,  Rivetts  v.  Godson. 

The  design  of  this  law  was  utterly  to  abolish  and  destroy  that  pernicious 
way  of  conveyance  to  uses.(a)  And  the  means  they  took  to  do  it  was  to 
make  the  possession  fall  in  with  the  use  in  the  same  manner  as  the  use 
was  limited  ;  and  where  they  were  all  freeholds,  it  was  thought  they  would 
be  then  subject  to  the  rule's  of  common  law.  But  the  method  has  not 
answered  the  legislature's  intent;  for  it  has  introduced  several  sorts  of 
conveyances  quite  opposite  to  the  rules  of  common  law ;  for  now,  when- 
ever a  use  is  raised,  the  statute  gives  cestui  que  use  the  possession ;  so  that 
it  is  only  necessary  to  form  a  use,  and  the  possession  passes,  without  any 
livery  or  record,  and  the  reversions,  without  the  attornment  of  particular 
tenants ;  and  now  the  use  (by  the  name  of  trust,  which  were  one  and  the 
same  before  the  statute)  remains  separately  in  some  persons,  and  the  pos- 
session separately  in  others,  as  it  did  before  the  statute,  and  are  not  brought 
together  but  by  decree  in  Chancery,  or  the  voluntary  conveyance  of  the 
possessor  of  the  land  to  cestui  que  trust.  So  that  the  principal  use  of  the 
stat.  of  27  H.  8,  especially  upon  fines  levied  to  uses,  is  not  to  bring  to- 
gether a  possession  and  use,  but  to  introduce  a  general  form  of  convey- 
ance, by  which  the  conusors  of  the  fine,  who  are  as  donors  in  the  case, 
may  execute  their  intents  and  purposes  at  pleasure,  either  by  transferring 
their  estates  to  strangers,  by  enlarging,  diminishing,  or  altering  them,  to 


128  USES  AND  TRUSTS. 

(D)  Alterations  introduced  by  27  Hen.  8,  c.  10. 

and  amongst  themselves,  at  their  pleasure,  without  observing  that  rigour 
and  strictness  of  law  for  the  possession  of  the  conusee,  as  was  requisite 
before  the  statute. 

Vaugh.  50,  Dixon  v.  Harrison.  ||(a)  Bacon  supports  at  length  the  contrary  opinion. 
Uses,  p.  39 ;  and  see  l)y.  3G2  b,  pi.  31.||  Notwithstanding-  this  statute,  there  are,  as 
will  be  shown  more  particularly,  three  ways  of  creating  a  use  or  a  trust  which  still 
remain  as  at  common  law,  and  is  a  creature  of  the  courts  of  equity,  and  subject  only  to 
their  control  and  direction.  1st,  Where  a  man  seised  in  fee  raises  a  term  for  years, 
and  limits  it  in  trust  for  A,  for  this  the  statute  cannot  execute,  the  termor  not  being 
seised.  ||But  if  A,  being  seised  in  fee,  bargains  and  sells  to  B  for  500  years,  the  sta- 
tute will  execute  the  use  in  B ;  but  if  B  afterwards  assign  the  term  to  C,  to  the  use  of 
D,  the  lewal  estate  will  remain  in  C,  and  D  will  take  a  mere  trust  in  equity.  Gilb. 
on  Uses,  by  Sugden,  80. ||  2dly,  Where  lands  are  limited  to  the  use  of  A  in  trust,  to 
permit  B  to  receive  the  rents  and  profits ;  for  the  statute  can  only  execute  the  first  use. 
3dly,  WThere  lands  are  limited  to  trustees  to  receive  and  pay  over  the  rents  and  profits 
to  such  and  such  persons:  for  here  the  lands  must  remain  in  them  to  answer  these 
purposes;  and  these  points  were  agreed  to.  I  Abr.  Eq.  Cases,  383,  Simpson  v.  Tur- 
ner; || Doe  v.  Biggs,  2  Taunt.  109,  113  ;  Kenrick  v.  Beauclerck,  3  Bos.  &  Pul.  175; 
Doe  v.  Ironmonger,  3  East,  533 ;  Harton  v.  Harton,  7  Term  R.  652 ;  Keene  v.  Dear- 
don,  8  East,  218°;  Gregory  v.  Henderson,  4  Taunt.  172 ;  Knight  v.  Smith,  12  East, 
455,|| 

But  before  we  consider  the  particular  alterations  introduced  in  the  mode 
of  conveying  property  by  the  27  H.  8,  it  may  be  necessary  to  premise  in 
general,  that,  since  the  statute,  the  limitation  of  uses  is,  in  many  cases, 
governed  by  the  rules  of  law.  As,  if  a  feoffment  is  made  to  the  use  of  J 
S  and  his  heirs  male  lawfully  begotten,  with  remainder  over ;  this  does 
not  pass  an  estate  tail,  but  a  fee-simple,  since  the  statute ;  for  since  the 
statute  has  brought  uses  into  possession,  they  ought  to  be  governed  by  the 
rules  of  estates  in  possession,  as  to  the  words  that  are  essential  to  the 
creating  of  such  uses.  Now  if  there  be  no  words  essential  to  the  creating 
of  an  estate,  there  is  no  such  estate  at  common  law,  and  the  statute  has 
not  abrogated  the  common  law  so  far  as  to  allow  an  estate  in  being,  with- 
out words  necessary  to  create  it ;  and  here  nobody  is  limited  from  whence 
the  heirs  of  the  tail  may  proceed.  Also,  no  fee-simple  can  be  created  in 
uses,  without  the  word  heirs,  since  the  statute,  for  the  same  reason. 

Gilb.  Law  of  Uses,  75 ;  1  Rep.  87  b.  Before  the  statute  the  word  heirs  was  not  ne- 
cessary to  create  an  inheritance  in  a  use,  but  now  uses  are  turned  into  possession,  they 
are  governed  by  the  rules  of  possessions  at  common  law.  {Willes,  180,  Tapner  v. 
Merfott;  1  Dall.  137,  Vanhorn's  Lessee  v.  Harrison.}  See  ante,  with  respect  to  the 
descent  of  uses.     ||And  see  Gilbert,  by  Sugden,  note,  p.  143. || 

So,  if  a  man  makes  a  feoffment  to  the  use  of  himself  for  years,  the. re- 
mainder to  B  in  tail,  remainder  to  his  own  right  heirs,  and  after  B  dies 
without  issue,  living  the  feoffor ;  the  remainder  to  his  right  heirs  is  void, 
because  it  being  contingent,  there  is  no  estate  of  freehold  to  support  it,  for 
there  is  no  tenant  to  the  prcecipe,  and  the  not  having  a  perpetual  tenant  to 
the  praecipe  was  an  inconvenience  the  statute  expressly  designed  to  re- 
dress, and  consequently  to  this  rule  the  statute  has  submitted  all  uses. 

2  Roll.  Abr.  791 ;  Gilb.  Law  of  Uses,  76.  Gilbert  makes  a  qu.  whether,  to  make 
this  remainder  contingent,  the  limitation  should  not  be  to  the  use  of  A  for  years,  re- 
mainder to  B  in  tail,  remainder  to  the  right  heirs  of  C,  for  the  case  as  above  reported 
in  Rolle  does  not  appear  to  be  contingent  remainder.  ||The  foregoing  note  is  by  Gil- 
bert. Sir  E.  Sugden  says,  the  answer  to  the  query  is,  that  as  the  remainder  was 
limited  to  the  right  heirs  of  the  settlor,  it  was  the  old  and  not  the  new  use,  and  conse- 
quently not  a  continarent  remainder;  but  upon  the  death  of  B  without  issue,  the  estate 
revertr  (1  to  the  settlor.  This  appears  from  the  correct  report  of  the  case  in  Mo.  718. 
Gilb.  by  Sugden,  115.|| 


USES  AND   TRUSTS.  129 

(E)  Of  the  several  Sorts  of  Conveyances  to  T     s. 

Likewise,  if  a  man  makes  a  feoffment  in  fee  to  the  use  of  A  for  life, 
the  remainder  to  his  first  son  in  tail,  the  remainder  to  B  in  fee  ;  if  A  dies, 
his  wife  being  privement  enseint,  and  a  son  is  afterwards  born,  he  shall 
take  nothing  ;  for  if  the  remainder  does  not  vest  at  the  determination  of 
the  particular  estate,  it  shall  never  vest ;  for  as  it  is  said  before,  the  sta- 
tute does  not  change  the  nature  and  being  of  estates  that  were  settled  at 
common  law,  and  a  remainder  ex  vi  termini  supposes  a  particular  estate, 
of  which  it  doth  remain. 

Gilb.  Law  of  Uses,  77.  But  see  10  &  11  W.  3,  c.  10,  for  preserving  contingent 
remainders  to  after-born  children,  ||  which  statute  was  occasioned  bv  the  decision  in 
Reeve  v.  Long,  1  Salk.  227.11 


^C5» 


So,  if  a  man  makes  a  feoffment  in  fee  to  the  use  of  A  his  son  for  life, 
and  afterwards  to  the  use  of  every  person  that  shall  be  his  heir,  for  life 
only,  it  is  not  good  to  the  heir ;  for  it  is  against  the  rules  of  common  law, 
that  a  perpetual  freehold  for  life  only  should  descend,  because  it  creates 
a  perpetuity.  But  it  seems  in  this  case,  as  if  the  Chancery  (since  there 
is  supposed  a  good  consideration)  would  have  executed  a  fee  in  A,  accord- 
ing to  the  intent  of  the  parties. 

1  Rep.  LIS  a,  Chudleigh's  case;  Gilb.  Law  of  Uses,  77.  If  such  a  limitation  were 
good,  the  inheritance  would  be  in  nobody. 

In  some  cases,  however,  the  statute  operates  against  the  rules  of  law. 
As, 

If  a  man  makes  a  feoffment  in  fee,  to  the  use  of  A  in  fee ;  but  upon 
payment  of  100?.  or  any  other  contingency,  to  the  use  of  B  in  fee,  if  the 
contingency  happens,  the  fee  shall  be  executed  in  B  ;  for  though,  accord- 
ing to  the  rules  of  common  law,  a  fee  cannot  be  limited  on  a  fee,  because 
a  fee-simple  is  the  largest  estate  that  can  be  limited,  and  therefore  will 
not  bear  a  remainder  over,  by  way  of  limitation ;  and  though  this  cannot 
be  construed  a  conditional  estate,  because  to  avoid  maintenance,  the  com- 
mon law  allows  no  stranger  to  take  advantage  of  a  condition ;  yet  the 
necessities  of  commerce  and  family  settlements  induced  the  Chancery  to 
pass  by  this  rule,  and  the  statute  has  executed  the  possession  in  the  same 
manner  and  form  as  the  party  had  the  use.  Now  since  he  had  but  a  con- 
ditional fee  in  the  use  before  the  statute,  he  cannot  have  an  absolute  and 
unconditional  estate,  since  the  statute ;  for  that  is  to  set  up  an  estate  di- 
rectly contrary  to  the  express  words  of  the  statute. 

Gilb.  Law  of  Uses,  78.  ||  See  Sir  E.  Sugden's  summary  of  the  operations  of  the 
statute  in  altering  the  common  law.  1st,  In  the  transfer  of  the  legal  estate  by  a  mere 
secret  deed ;  2dly,  in  the  creation  of  estates  not  allowed  by  the  common  law.  Gilb. 
by  Sugden,  p.  148.  || 

It  has  been  observed,  that  the  statute  of  the  27  H.  8,  introduced 
several  sorts  of  conveyances  quite  opposite  to  the  rules  of  common  law ; 
and  this  leads  us  to  consider  the  several  sorts  of  conveyances  to  uses,, 
with  their  respective  operations. 

(E)  Of  the  several  Sorts  of  Conveyances  to  Uses.   * 

There  are  but  three  sorts  of  conveyances  to  uses ;  the  two  first  of 
which  only  will  feed  a  contingent  use,  viz. :  1.  Feoffment,  fine,  or  com- 
mon recovery  to  uses.  2.  Covenant  to  stand  seised  to  uses.  3.  Bargain 
and  sale  to  uses.  By  this  last  conveyance  only  no  contingent  use  can 
be  supported. 
2  Sid.  158,  Heyns  v.  Villars 

Vol.  X.— 17 


130  USES   AND  TRUSTS. 

(E)  Of  the  several  Sorts  of  Conveyances  to  Uses. 

It  is  to  be  observed,  concerning  the  operation  of  these  conveyances, 
that  by  those  under  the  first  division,  such  as  feoffment,  fine,  or  common 
recovery,  uses  are  raised  by  transmutation  of  possession ;  but  by  the  se- 
cond and  third,  that  is,  by  covenant  to  stand  seised,  and  by  bargain  and 
sale,  uses  arise  without  transmutation  of  possession,  for  the  possession  is 
still  retained  by  the  covenantor  pr  bargainor,  but  for  the  use  of  another. 
Therefore, 

Plow.  301,  Sharrington  v.  Stotton.  The  covenantee  or  bargainee  cannot  have  the 
land,  because  they  had  not  livery  of  seisin,  therefore  reason  vests  the  use  in  them, 
which  is  but  a  right  in  conscience  to  have  the  profits.     Plow.  loc.  cit. 

1.   Of  those  which  raise  Uses  by  way  of  Transmutation  of  Possession,  such  as,  1.  Feoff- 
ment.    2.  Fines.     3.  Recoveries. 

The  general  nature  and  effect  of  these  several  assurances  have  been 
already  explained  under  their  respective  titles.  It  may  not  be  improper 
here,  however,  to  take  notice  of  this  general  rule,  viz.,  That 

On  these  conveyances  which  raise  uses  by  way  of  transmutation  of  pos- 
session, no  consideration  is  necessary. 
*  Per  Holt,  C.  J.,  12  Mod.  161,  102,  and  1  Rep.  170,  Mildmay's  case. 

A  use  declared  on  an  estate  executed,  needs  no  consideration. 

Moor,  102,  pi.  247,  Calthorpe's  case.  It  may  be  added,  that  when  a  use  arises  upon 
a  consideration,  the  consideration  must  be  presently  executed.  Arg.  Cart.  140,  in 
case  of  Garnish  v.  Wentworth.  On  the  other  hand  it  has  been  argued  that  if  J  cove- 
nant to  stand  seised  to  the  use  of  J  S  and  his  heirs,  in  consideration  that  he  shall  be 
my  counsellor,  it  is  good,  and  the  land  passed  presently,  though  it  is  not  executed. 
Arg.  Cart.  142,  says  this  case  was  put  by  Popham  in  B.  R.  in  one  Pepplewell's  case. 
||  See  note  (8),  Harg.  Co.  Litt.  123  a.|| 

It  remains  in  the  next  place  to  consider, 

Dieds  declaring  the  Uses  of  Feoffments,  Fines,  and  Recoveries. 

And  herein  it  is  to  be  premised,  that  uses  may  be  declared  or  averred 
on  a  feoffment,  fine,  or  recovery  of  land ;  but  on  a  bargain  and  sale  of 
land  no  use  may  be  declared  or  averred,  but  what  the  law  doth  make. 

1  Rep.  176,  Mildmay's  case.  ||  Because  a  use  cannot  be  declared  upon  a  use  ;  and 
see  Gilb.  by  Sugden,  p.  149.  || 

Likewise  on  a  covenant  to  stand  seised  to  uses,  no  use  may  be  declared 
or  averred  but  Avhat  is  contained  within  the  deed. 
1  Rep.  176,  Mildmay's  case ;  Dyer,  169,  pi.  21. 

It  remains  therefore  to  consider, 

1.  Who  may  declare  uses.  2.  To  whom  they  may  be  declared.  3.  In 
what  manner  they  may  be  declared.  4.  At  what  time  they  may  be  de- 
clared.    5.  In  what  cases  averments  may  be  made  of  uses. 

1.  Who  may  declare  Uses. 

As  the  Court  of  Chancery  does  not  set  up  rules  of  property  contrary 
to  the  rules  of  law,  they  who  have  not  a  disposing  power  by  the  law  can- 
not raise  a  use  ;  and  consequently  baron  and  a  feme  covert  cannot  declare 
uses  upon  a  feoffment  so  as  to  bind  the  wife. 

Gilb.  Law  of  Uses,  39. 

But  baron  and  feme  may  levy  a  fine  which  will  bind  the  wife  ;  for  here 
the  law  allows  her  a  disposing  power,  because  she  is  privately  examined  ; 
consequently,  the  Chancery  must  allow  them  to  declare  what  is  the  design 


USES   AND   TRUSTS.  131 

(E)  Of  the  several  Sorts  of  Conveyances  to  Uses. 
of  that  fine ;  and  therefore  such  declaration  by  them  both  shall  hind  the 
wife. 

Moor,  197  ;  2  Rep.  57  a,  Beckwith's  case ;  2  Roll.  Abr.  798. 

Likewise,  if  the  husband  only  declare  the  uses,  this  shall  bind  the 
wife ;  for  since  she  joins  in  the  fine,  she  must  be  presumed  to  concur  in 
the  design  of  that  fine,  unless  the  contrary  appears  by  some  manifest 
sign  of  dissent. 

2  Rep.  57  a ;  Roll.  Abr.  798. 

But,  if  the  husband  declares  the  uses  of  the  fine  one  way  by  deed,  and 
the  wife  another  way  by  deed,  this  binds  the  husband  during  the  coverture, 
but  not  the  wife  afterwards  ;  for  the  husband  cannot  declare  the  uses  with- 
out concurrence  of  the  wife,  because  he  has  no  estate  ;  and  she  cannot  be 
presumed  to  concur  where  the  contrary  appears  by  her  deed :  and  she  can- 
not declare  the  uses  alone,  because  during  marriage  she  is  not  sui  juris, 
and  without  the  husband  she  has  no  disposing  power :  and  if  there  be  no 
use  declared  upon  this  fine,  it  is  to  the  use  of  the  wife :  for  where  there 
is  no  other  intent  of  a  fine  declared,  it  is  supposed  to  be  designed  as  a 
farther  security  to  the  present  possessor ;  and  the  use  is  still  in  the  wife, 
since  in  this  case  she  has  not  departed  with  it. 

2  Rep.  57 ;  Moor,  197,  Beckwith's  case.  Quaere,  whether  the  declaration  be  not 
merely  void.  Gilb.  Law  of  Uses,  40.  A  fine  shall  bind  the  wife,  though  she  be  within 
age  ;  but  it  is  said  that  such  a  fine  is  reversable  for  the  nonage  of  the  wife  during  her 
nonage.  Cro.  Eliz.  129 ;  Charnoicke  et  Ux.  v.  Worsley,  2  Rep.  77  b ;  Lord  Crom- 
well's case,  Gilb.  Law  of  Uses,  41. 

A  man  of  non  sane  memory  may  declare  the  use  of  a  fine  levied. 

2  Rep.  58  a,  Beckwith's  case.     So,  an  infant  may  limit  a  use  upon  feoffment,  fine, 
or  recovery,  and  he  cannot  countermand  or  avoid  the  use,  without  first  avoiding  the    , 
conveyance.     Lord  Bacon  on  the  Statute  of  Uses,  355. 

It  is  observable  in  general,  that  every  man  may  declare  and  dispose 
of  the  use  according  to  the  estate  and  interest  he  has  in  the  land :  and 
therefore  if  two  joint-tenants  levy  a  fine,  and  declare  the  uses  severally, 
each  man  disposes  of  his  own  moiety ;  but,  if  they  declare  no  uses,  they 
are  seised  as  before. 

2  Rep.  58  a,  Beckwith's  case. 

So,  if  tenant  for  life  and  he  in  remainder  in  fee  join  in  a  fine,  without 
declaring  any  uses,  they  are  seised  as  they  were  before. 

2  Rep.  58  a,  Beckwith's  case. 

[If  the  remainder-man  seals,  and  is  party  to  a  deed,  wherein  the  tenant 
for  life  alone  covenants  to  suffer  a  recovery,  &c,  to  certain  uses,  this 
does  not  bind  the  remainder-man,  though  he  in  the  remainder  after  join 
in  suffering  the  recovery,  &c. 

3  P.  Wms.  210,  note  B.  " 

If  tenant  for  life,  remainder-man  in  tail,  and  reversioner  in  fee  levy  a 
fine,  a  declaration  of  uses  by  the  tenant  for  life  and  remainder-man  does 
not  bind  the  reversioner,  without  his  privity. 

Roe  v.  Popham,  Dougl.  25.] 

If  A  seised  of  certain  lands,  and  B  a  stranger  join  in  a  fine,  without 
consideration,  it  shall  be  to  the  use  of  A,  for  since  there  is  no  considera- 
tion to  part  with  the  land,  the  use  is  still  in  him. 

2  Rep.  58  a. 

In  like  manner  if  A,  seised  in  fee  of  certain  lands,  and  B,  a  stranger, 


132  USES  AND   TRUSTS. 

(E)  Of  the  several  Sorts  of  Conveyances  to  Uses. 

join  in  a  common  recovery,  without  declaring  any  uses,  the  use  shall 
arise  to  him  that  had  the  interest  in  the  land,  and  not  to  the  stranger. 

2  Roll.  Abr.  789. 

So,  where  the  father  was  tenant  for  life,  remainder  to  the  son  in  tail ; 
a  prcecipe  was  brought  against  the  father,  who  vouched  the  son,  and  a 
common  recovery  was  had ;  and  the  indenture  recited,  that  the  recovery 
was  made  between  the  father  and  others:  but,  inasmuch  as  no  proof  was 
of  the  consent  of  the  son  to  such  declaration,  nor  was  he  party  to  the 
indenture,  the  court  directed  the  jury  to  find  the  uses  according  to  the 
estate  which  the  parties  had  at  the  time  of  the  recovery.(a) 

Lat.  82,  Argol  v.  Cheney;  Palm.  405,  S.  C;  Noy,  7,  S.  C.  {a)  See  farther  letter 
(I)  of  Resulting  Uses. 

[The  king  may  declare  uses  upon  his  letters  patent,  though  indeed  the 
patent  of  itself  implies  a  use.  But,  if  the  king  gives  lands  to  J  S  and  his 
heirs  by  letters  patent  to  the  use  of  J  S  for  life:  here,  J  S  has  only  an 
estate  for  life,  and  the  king  has  the  inheritance  without  any  office  found ; 
for  implication  out  of  matter  of  record  ever  amounts  to  matter  of  record. 

Bac.  Uses,  66 ;  Sand.  Uses,  208. 

The  queen  may  also  declare  uses. 

Bac.  Uses,  66 ;  Sand.  Uses,  208. 

2.  To  -whom  they  may  be  declared. 

A  use,  it  is  said,  cannot  be  raised  to  aliens.  For  an  alien  could  not 
compel  the  feoffees  to  execute  a  use ;  for  it  is  contrary  to  the  policy  of 
the  law  that  an  alien  should  plead,  or  be  impleaded,  touching  lands,  in 
any  court  of  the  kingdom. 

Gilb.  Law  of  Uses,  43.  By  Rolle,  C.  J. — The  Chancellor  cannot  compel  one  to  exe- 
cute a  trust  for  an  alien.  Sty.  21,  The  King  v.  Holland ;  All.  15  &  16.  But  accord- 
ing to  Broke,  a  feoffment  or  gift  to  the  use  of  an  alien  born  is  good,  for  a  use  is  only 
a  matter  in  conscience.     Bro.  Feoffment  to  Uses,  pi.  29. 

The  king  shall  have  the  use  of  an  alien ;  for  the  advantage  which  a 
man  receives  from  his  duty  can  extend  no  farther  than  the  obligation  of 
that  duty  reaches ;  but  the  allegiance  of  an  alien  is  temporary,  therefore 
so  is  his  property;  and  since  he  is  incapable  of  perpetual  subjection,  he 
cannot  be  protected  in  any  estate  that  is  of  perpetual  continuance ;  and 
the  inconvenience  is  the  same  if  this  be  a  freehold  at  law,  or  a  trust. 

All.  15  &  16  ;  Sty.  40 ;  Gilb.  Law  of  Uses,  43.  But  in  this  case  it  is  said,  the  kinp 
shall  not  seize  the  land  of  an  alien,  unless  it  be  executed  in  him  by  a  decree  in  Chan 
eery ;  for  there  was  no  right  in  cestui  que  use  himself  to  seize  the  lands  without  a  decree 
and  the  king  has  only  the  rights  of  the  cestui  que  use.  Sty.  40  ;  Gilb.  Law  of  Uses,  44 
||  A  trust  for  an  alien  will  be  executed  for  the  benefit  of  the  king.  All.  14;  Sty.  40 
3  Cha.  R.  19.|| 

Also,  though  the  king  cannot  have  feoffees  to  his  use,  because  he  can- 
not take  but  by  matter  of  record,  yet  he  may  take  it  when  the  use  is 
found  of  record,  where  an  office  is  found  of  the  whole  matter. 

Gilb.  Law  of  Uses,  44. 

Likewise,  the  limitation  of  a  use  to  the  poor  of  the  parish  of  Dale  is 
good,  though  no  corporation  :  for  though  they  are  capable  of  no  property 
at'  common  law  in  the  thing  trusted,  because  the  rules  of  pleading  require 
persons  claiming  to  bring  themselves  under  the  gift :  and  no  indefinite  multi- 
tude, without  public  allowance,  can  take  by  a  general  name  ;  yet  they  are 
capable  of  a  trust;  for  here  the  complainants  do  not  derive  to  themselves 


USES   AND   TRUSTS.  133 

(E)  Of  the  several  Sorts  of  Conveyances  to  Uses. 

any  right  or  title  to  the  estate,  but  show  that  it  has  been  abused  and  mis- 
employed by  the  owners,  contrary  to  conscience.(a) 

Bro.  F.  to  Uses,  pL  29;  1  Rep.  23-25;  Gilb.  Law  of  Uses,  44.  \\(a)  There  must 
in  every  case  be  a  use  capable  of  taking  effect.  Therefore,  as  was  gravely  observed 
in  the  reign  of  Edward  the  Fourth,  a  use  in  favour  of  Salisbury  Plain,  or  of  the  Moon, 
is  void.     Bro.  Abr.  339  b,  pi.  37.  j| 

3.  In  what  Manner  they  may  be  declared. 

Before  the  statute  of  frauds,  29  Car.  2,  c.  3,  even  a  parol  declaration 
of  the  uses  of  a  fine  was  good.     And 

4  Mod.  269,  Jones  v.  Morley. 

Uses,  even  since  that  statute,  may  be  declared  by  writing  only  with- 
out any  seal. 

7  Mod.  76,  Shortridge  v.  Lamplugh.  ||  A  written  declaration,  if  not  by  deed,  will 
not  control  a  prior  declaration  by  deed ;  but  where  the  first  declaration  is  by  writing 
merely,  it  may  be  controlled  by  a  subsequent  writing.     Gilb.  by  Sugden,  101.  jj 

|3A  grant  to  A,  for  the  use  of  B,  is  a  use  executed  in  B. 
Willson  v.  Killcannon,  4  Hayw.  196.gf 

If  a  use  is  declared  by  indenture,  yet  the  parties  may  alter  the  use  by 
other  indenture  at  any  time  till  the  estate  is  executed,  and  the  last  in- 
denture shall  guide  the  use. 

Moor,  107,  pi.  249.     Agreed  by  the  justices  in  Andrew's  case. 

[But  such  other  indenture  must  be  by  the 'consent  of  all  the  parties  in- 
terested, (b)  else  it  cannot  control  the  first  indenture.  Thus,  A  was  ten- 
ant for  ninety-nine  years,  if  he  so  long  lived,  remainder  to  trustees  to 
support  contingent  remainders,  remainder  to  the  first  and  other  sons  of 
A  in  tail,  remainder  to  A  in  fee.  A  having  two  sons,  B  and  C,  they  all 
joined  in  a  lease  and  release  of  the  estate  to  certain  uses,  and  there  was 
a  conveyance  to  suffer  a  recovery  within  twelve  months  to  those  uses : 
afterwards  they,  with  the  heir  of  the  surviving  trustee,  joined  in  a  lease 
and  release  to  make  a  tenant  to  the  prcecipe,  in  order  to  suffer  a  recovery 
to  the  uses  of  the  first  indenture ;  but  before  any  recovery  was  suffered, 
B  the  eldest  son  died,  and  after  the  death  of  B,  and  before  the  recovery 
was  suffered  pursuant  to  the  above  deeds,  A  and  C  by  another  deed  co- 
venanted to  suffer  a  recovery  to  certain  other  uses ;  and  before  the  expi- 
ration of  the  twelve  months  specified  in  the  first  deed,  a  recovery  was 
suffered.  The  question  was,  Whether  the  first  deed,  declaring  the  uses 
of  the  recovery,  and  made  by  A,  B,  and  C,  should  stand,  in  preference 
to  that  made  by  A  and  C  alone  ?  Lord  Hardwicke  clearly  held,  that 
the  first  deed  by  A,  B,  and  C  was  a  good  deed  to  lead  the  uses  of  the 
recovery :  that  when  A,  B,  and  C,  and  the  heir  of  the  surviving  trustee, 
made  a  tenant  to  the  prcecipe,  they  passed  a  defeasible  estate  to  serve 
the  uses  of  the  first  deed ;  and  that  the  recovery  suffered  within  the 
twelve  months  rendered  that  defeasible  estate  indefeasible,  though  one 
of  the  parties  was  dead  before  the  recovery  suffered :  that  the  last  deed 
was  not  sufficient  to  alter  the  uses  declared  by  the  first  deed,  because  not 
made  by  the  agreement  of  all  the  parties. 

Stapilton  v.  Stapilton,  1  Atk.  2.  See  Durnford  v.  Lane,  1  Bro.  Ch.  R.  100;]  {8 
Term,  211,  Doe  v.  Wichelo. }  ||  (b)  Who  shall  come  within  this  description  is  in  many 
cases  a  question  of  difficulty.  || 

Where  there  is  a  deed,  and  a  last  writing  by  husband  and  wife,  the  last 
writing,  though  not  a  deed,  amounts  to  a  sufficient  declaration  of  uses 
upon  the  fine,  the  fine  being  levied  at  a  time  different  from  the  deed. 

Comb.  429,  Jones  v.  Morley.     This  writing  was  only  between  the  husband  of  the 

M 


134  USES   AND    TRUSTS. 

(E)  Of  the  several  Sorts  of  Conveyances  to  Uses. 

one  part,  and  the  -wife  of  the  other  part.  But  the  deed  was  between  them  and  others. 
Carth.  410,  S.  C. ;  2  Salk.  677,  S.  C. ;  4  Mod.  261,  S.  C. ;  Parliament  Cases,  143,  S. 
C.j  and  judgment  affirmed. 

A  declaration  of  the  use,  either  express  or  in  laiv,  is  sufficient ;  as,  if 
f  A  covenants  with  B  for  money  to  do  all  acts  which  B  shall  require  for 
assurance  to  A  and  his  heirs,  and  then  levies  a  fine  to  B,  this  covenant 
and  fine  will  give  B  the  whole  land. 
Hob.  275,  Clanrickard's  case. 

Where  a  bastard  was  seised  of  a  manor  and  made  his  will,  by  which  he 
devised  the  manor ;  and  after  he  made  a  feoffment  of  the  same  manor  to 
the  use  of  such  persons,  and  for  such  estates  as  he  had  declared  by  his  last 
will,  bearing  date,  &c,  though  this  was  now  a  countermanded  will,  it  was 
sufficient  to  declare  the  use  of  the  feoffment,  and  so  no  escheat. 

Moor.  789,  pi.  1090,  in  the  Exchequer-chamber,  Hussey's  case. 

It  is  not  necessary  in  declaring  a  use,  if  there  be  a  transmutation  of 
possession,  to  use  the  very  word  use ;  any  expression  whereby  the  mind 
of  the  party  may  be  known,  that  such  an  one  shall  have  the  land,  is  suffi- 
cient.    Per  Holt,  C.  J.,  in  delivering  the  opinion  of  the  court. 

12  Mod.  162,  case  of  Jones  v.  Morley. 

4.  At  what  Time  they  may  be  declared. 

A  declaration  of  uses  may  be  made  either  before  or  after  the  time  of 
making  the  assurance ;  for  a  subsequent  declaration  may  direct  the  uses 
of  a  precedent  assurance  ;  and  by 

4  &  5  Ann.  c.  16,  §15,  it  is  enacted,  that  all  declarations  or  creations 
of  uses  or  trusts  of  any  fines  or  common  recoveries  manifested  by  deed(a) 
after  the  levying  or  suffering  thereof  shall  be  as  good  in  laiv  as  if  the  act  of 
29  Car.  2,  c.  3,  for  prevention  of  frauds  or  perjuries,  had  not  been  made. 

In  an  ejectment  on  a  special  verdict  the  following  case  was  determined : — A  and  B 
his  wife  levied  a  fine,  and  four  years  afterwards  declare  the  uses ;  in  which  deed  are 
the  words  following,  viz.,  "All  and  every  fine  or  fines  levied,  or  to  be  levied,  shall  be 
to  the  uses  of  this  deed."  Holt,  C.  J.,  delivered  the  opinion  of  the  court,  that  the 
uses  were  sufficiently  declared  (the  jury  having  found,  that  the  fine  was  levied  to  the 
uses  therein  declared.)  And  that,  notwithstanding  the  Statute  of  Frauds  and  Per- 
juries, a  subsequent  deed  is  now  as  good  as  it  was  before  the  statute.  And  that  it 
was  doubtful  whether  the  statute  extends  to  uses,  because  they  are  not  mentioned  there, 
but  only  trusts,  yet  that  they  took  trusts  and  uses  to  be  the  same,  in  respect  of  trusts 
in  their  larger  extent,  &c,  so  within  the  statute  of  uses.  Holt's  Rep.  733,  Bushel  v. 
Burland ;  |[and  11  Mod.  197,  S.  C.  In  both  books  the  case  is  loosely  reported,  (a)  It 
would  seem  from  the  preamble  to  the  4  &  5  Ann.  c.  16,  §15,  and  from  the  terms  of 
the  Statute  of  Frauds,  to  which  it  refers,  that  the  word  "  deed"  was  inserted  in  the 
act  by  mistake  ;  and  Sir  E.  Sugden  observes,  that  it  is  open  to  contend  that  uses  may 
still  bo  declared  by  writing  only  without  seal,  even  after  the  assurance  is  made. 
Gilbert  by  Sugden,  115.[| 

If  A  covenants  to  levy  a  fine  before  such  a  day,  though  the  fine  levied 
differs  from  the  indenture  in  time,  place,  quantity  of  acres,  or  in  the 
,  person  that  occupied  it ;  yet,  when  the  fine  is  levied,  it  shall  be  intended 
to  be  to  the  same  uses  in  the  indenture. 

Ary.  3  Bulst.  251,  Hagervil  v.  Hare,  cites  2  Rep.  69,  Lord  Cromwell's  case.  But 
it  may  in  such  case  be  averred  by  parol  to  be  toother  uses.  But,  if  the  fine  be  levied 
in  all  things  pursuant  to  the  indenture,  no  averment  can  be  but  by  writing;  for  in 
tlii<  case  the  indenture  is  directory  i<>  the  fine,  and  in  the  other  case  it  is  but  evidence. 
Cro.  J  a.  29,  Countess  of  Rutland  v.  The  Earl  of  Rutland. 

If  a  precedent  indenture  be*  made  to  direct  the  uses  of  a  subsequent  as- 
surance, it  is  but  directory  till  the  assurance  is  made,  and  then  the  land  is 


USES  AND  TRUSTS.  135 

(E)  Of  the  several  Sorts  of  Conveyances  to  Uses. 

bound,  and  the  conusor  or  recoveree  cannot  by  any  act  of  his,  after  the 
recovery  had,  charge  or  avoid  it :  but,  if  the  declaration  be  subsequent,  if, 
in  the  interim  between  the  assurance  had  and  the  declaration  of  the  uses, 
the  conusor  or  recoveree  sells,  gives,  or  charges  the  lands  to  others,  this 
subsequent  declaration  will  not  subvert  the  mesne  estates,  charges,  or  in- 
terests, unless  it  can  be  otherwise  proved,  that  by  a  certain  and  complete 
agreement  of  the  parties,  the  assurance  was  had  and  made  to  these  uses. 
2  Kep.  26,  Countess  of  Rutland's  case;  9  Rep.  10,  11,  &c,  Dowman's  case. 

But  the  distinctions  between  precedent  and  subsequent  declarations 
will  best  appear  from  the  consideration  of  the  following  head,  viz., 

5.  In  what  Cases  Averments  may  be  made  of  Uses. 

With  regard  to  averments  it  is  to  be  observed,  that  where  a  use  is  ex- 
pressed upon  any  feoffment,  &c,  there  no  averment  shall  be  received  to 
prove  any  use  contrary  to  the  use  expressed ;  but  in  case  no  use  is  ex- 
pressed in  the  assurance,  there,  other  uses  than  what  the  law  would  make 
upon  the  assurance  may  be  averred,  and  proved  to  have  been  agreed 
upon,  and  the  assurance  shall  be  to  such  uses. 

9  Rep.  10,  Dowman's  case. 

If  by  the  words  of  a  deed,  upon  a  valuable  consideration,  a  man  takes 
it  to  his  own  use,  or  to  the  use  of  another,  there  can  be  no  averment  that 
he  takes  it  as  a  trustee  in  any  other  manner ;  for  there  is  such  a  sanction 
given  to  all  solemn  acts  of  contracting,  that  they  cannot  be  construed 
directly  contrary  to  their  own  expressions. 

Gilb.  Law  of  Uses,  6 ;  1  And.  313.  Where  the  deed  is  not  upon  a  valuable  con- 
sideration, it  is  looked  upon  as  a  fraudulent  conveyance  against  the  trust. 

Thus,  if  a  feoffee  to  uses  makes  a  feoffment  in  fee  by  deed,  upon  an 
equitable  consideration,  to  J  S  and  his  heirs,  to  the  use  of  his  heirs  ex- 
pressly, J  S  shall  be  seised  to  his  own  use,  though  he  had  no  notice  of 
the  former  trust ;  for  where  the  deed  expresses  the  use,  an  implied  one 
cannot  be  averred,  (a) 

Gilb.  Law  of  Uses,  7.  (a)  It  seems  at  common  law  a  use  might  have  been  raised 
by  word,  upon  a  conveyance  that  passed  the  possession  by  some  solemn  act  as  a  feoff- 
ment ;  but,  where  there  was  no  such  act,  there,  it  seems,  a  deed  declaratory  of  the 
uses  was  necessary ;  for  as  a  feoffment  which  passed  the  estate  might  be  made  at 
common  law  by  parol,  so  by  the  same  reason  might  the  uses  of  the  estate  be  declared 
by  parol :  but  where  a  deed  was  requisite  to  the  passing  of  the  estate  itself,  it  seems 
it  was  requisite  for  the  declaration  of  the  uses,  as  upon  a  grant  of  rent,  or  the  like.  So. 
it  seems,  a  man  could  not  covenant  to  stand  seised  to  a  use  without  a  deed,  there  being 
no  solemn  act ;  but  a  bargain  and  sale  by  parol  has  raised  a  use  without,  and  it  has 
been  held  to  do  so  since  the  statute.  In  cities  exempted  out  of  the  statute,  it  has  been 
held,  that  if  a  fine  be  levied  of  a  rent,  no  use  can  be  limited  of  it  without  deed ;  but  now 
by  29  Car.  2,  c.  3,  all  declarations  of  trusts,  other  than  such  as  arise  by  implication  of 
law,  are  to  be  in  writing,  and  signed  by  the  party,  who  is  by  law  enabled  to  declare 
such  trust,  or  else  it  must  be  by  his  last  will  in  writing.    Gilb.  Law  of  Uses,  270,  27 1 . 

Where  the  uses  of  a  recovery  are  declared  by  deed  precedent,  no  new 
or  other  use  can  be  averred  by  parol,  unless  there  was  some  variance  be- 
tween the  deed  and  the  recovery ;  but  in  case  of  a  deed  precedent,  if  the 
party  set  up  other  uses,  he  must  confess  and  avoid :  but,  Avhere  they  are  by 
deed  subsequent,  new  or  other  uses  may  be  averred  without  showing  the 
deed,  though  there  be  no  variance,  &c,  because  there  was  an  intermediate 
time  when  there  might  be  such  agreement  made,  and  the  uses  arise  by  the 


136  USES  AND  TRUSTS. 

(E)  Of  the  several  Sorts  of  Conveyances  to  Uses. 

recovery  according  to  that  agreement ;  and  if  a  deed  subsequent  be  set 
up,  the  other  may  traverse  those  uses. 
2  Salk.  676,  Tregame  v.  Fletcher. 

But,  where  there' is  a  variance  between  the  deed  and  the  recovery  or 
other  assurance,  and  no  averment  of  the  uses  can  be  made,  there,  they 
must  be  left  to  the  construction  of  law. 

There  is  a  difference  likewise  with  respect  to  averments  between  parties 
and  strangers.     Thus, 

If  a  declaration  of  uses  be  subsequent  to  a  fine  or  recovery,  it  is  good ; 
but  there  may  be  an  averment,  that  they  were  to  other  uses  ;  yet  with  this 
difference,  that  where  the  declaration  is  subsequent,  there,  the  heir  of  the 
conusor  is  estopped  to  aver  other  uses,  but  a  stranger  is  not.  But,  where 
the  deed  is  precedent,  there,  neither  the  heir  nor  the  stranger  is  estopped 
to  aver  other  uses,  in  case  the  fine  varies  in  amy  circumstance :  but,  if 
the  fine  was  levied  pursuant  to  the  deed,  no  proof  whatsoever,  either  by 
writing  or  parol,  shall  be  admitted,  that  the  fine  was  to  other  uses  than 
what  are  contained  in  the  deed,  that  being  an  estoppel  to  the  parties. 
Per  Holt,  C.  J. 

Comb.  429,  Jones  v.  Morley. 

It  has  been  held,  that  a  deed  of  uses  precedent  to  a  recovery  may  be 
explained  by  a  deed  subsequent,  as  in  the  following  instance  : — Feme,  be- 
fore the  27  H.  8,  of  uses,  being  seised  of  land,  suffered  a  common  recovery, 
and  intending  to  marry  A  B,  she,  before  the  marriage,  declared  by  inden- 
ture that  the  feoffees  should  be  seised  to  the  use  of  herself  and  A  B,  whom 
she  intended  to  marry,  and  their  heirs.  The  feoffees  executed  an  estate 
after  the  marriage  to  the  husband  and  wife,  and  their  heirs  in  fee,  without 
any  use  expressed.  Afterwards  the  baron  and  feme  by  other  indenture 
declared,  that  the  first  indenture  was  mistaken;  for  that  it  should  have 
been  to  the  heirs  of  their  tivo  bodies,  and  for  default  to  the  heirs  of  the 
wife.  And  they  covenant,  bargain,  and  agree,  to  stand  seised  to  the  use 
of  themselves  in  special  tail,  and  after,  to  the  right  heirs  of  the  wife ;  and 
the  husband  covenanted,  if  the  wife  died  without  issue,  during  his  life, 
that  he  would  execute  an  estate  accordingly.  The  wife  died  without  issue, 
and  after  the  statute  of  uses  the  baron  died  seised ;  and  it  was  held,  that 
the  first  indenture  was  corrected  by  the  second,  and  the  first  use  is  suffi- 
ciently altered  without  estate  executed,  and  the  considerations  are  reason- 
able and  sufficient,  and  adjudged  for  the  heir  of  the  wife. 

Dy.  3U7  b,  pi.  71,  A'avasor's  case. 

A  consideration  which  stands  with  the  deed  and  not  repugnant  to  it 
may  be  averred. 

Rep.  40,  Bedel's  case. 
It  now  remain  to  consider, 

2.  Those  Conveyances  which  raise  Uses  without  Transmutation  of  Possession,  such  as, 
1.  Covenants  to  stand  seised  to  Uses.     And,  2.  Of  Bargain  and  Sale. 
1.  Covenants  to  stand  seised  to  Uses. 
This  convcyarce  not  having  been  hitherto  treated  of,  it  will  be  neces- 
sary to  inquire  more  fully  into  its  nature  and  effect. 

The  original  of  it  was  in  this  manner.  Before  27  H.  8,  when  any  man 
covenanted  to  stand  seised  to  the  use  of  another,  the  remedy  was  two- 
fold. 

Gilb.  Law  of  Uses,  110. 


USES  AND  TRUSTS.  137 

(E)  Of  the  several  Sorts  of  Conveyances  to  Uses. 

First,  By  action  at  common  law  upon  the  covenant,  and  thereby  damages 
only  were  recovered. 
Gilb.  Law  of  Uses,  110. 

Secondly,  in  Chancery ;  and  there  the  remedy  arose  thus :  When  any 
man  covenants  to  do  a  thing,  the  party  is  first  bound  in  conscience  to  per- 
form the  thing  itself;  and  if  that  cannot  be,  then  to  render  damages  for 
not  doing  it ;  therefore  the  Chancery  that  examines  the  conscience  of 
men's  actions  requires  a  specific  performance  of  the  thing  itself,  where  it 
can  be  had :  but  the  common  law  could  not  carry  this  covenant  so  far 
without  offering  violence  to  its  own  rules ;  for  the  common  law  requires 
livery ;  and  to  allow  an  action  for  a  specific  performance  makes  the  agree- 
ment binding  without  it;  but  by  the  27  H.  8,  these  uses  are  executed, 
and  therefore  no  action  lies ;  for  there  can  be  no  complaint  for  not  trans- 
ferring the  thing,  when  the  statute  transfers  it  to  the  party  himself. 

{All  the  circumstances  necessary  to  make  a  good  deed  of  covenant  to 
stand  seised  to  uses  are  these :  1.  That  there  be  a  sufficient  and  proper 
consideration.  2.  That  there  be  a  deed.  3.  That  the  grantor  or  cove- 
nantor be  actually  seised  of  the  land  at  the  time  of  the  grant.  4.  That 
there  be  apt  words  to  convey  lands. 

1  Dall.  138,  Vanhorn's  Lessee  v.  Harrison ;  Willes,  685,  Roe  v.  Traninarr.} 

1.  Who  may  covenant  to  stand  seised,  and  to  whom. 

2.  What  Consideration  is  necessary  to  a  Covenant  to  stand  seised,  and  how  far  it 

extends. 

3.  By  what  Words  a  Man  may  covenant  to  stand  seised. 

4.  The  Effect  of  a  Covenant  to  stand  seised. 

1.   Who  may  covenant  to  stand  seised,  and  to  whom. 

The  king  cannot  be  seised  to  a  use,  because  there  is  no  means  to  com- 
pel him  to  perform ;  for  the  Chancery  has  only  a  delegated  power  from 
the  king  over  the  consciences  of  his  subjects ;  and  the  king,  who  is  the 
universal  judge  of  property,  ought  to  be  perfectly  indifferent,  and  not  to 
take  upon  him  the  particular  defence  of  any  man's  estate,  as  a  trustee. 

Poph.  72,  Dillon  v.  Fraine  ;  Hardr.  4G8,  Pawlett  v.  Attorney-General :  1  Roll.  Rep. 
332,  Cooper  v.  Franklin  and  another.  But  see  Vern.  439,  per  Master  of  the  Rolls,  in 
case  of  Lord  Kildare  v.  Eustace,  relating  to  the  Irish  forfeitures,  where  he  says  he  takes 
the  king  tc  he  in  nature  of  a  trustee,  notwithstanding  the  general  received  opinion  to 
the  contrary.  The  king  cannot  he  seised  to  use,  because  he  cannot  be  obliged  to 
execute  the  possession  to  the  use  by  a  subpoena,  since  if  he  disobeys  he  cannot  be 
compelled  to  obedience  by  imprisonment.  Jenk.  195,  pi.  1.  [The  king  cannot  be 
seised  to  a  use ;  no,  not  where  he  taketh  in  his  natural  body,  and  to  some  purpose  as 
a  common  person  ;  and,  therefore,  if  land  be  given  to  the  king  and  J  D,  pour  terme  de 
leur  vies,  this  use  is  void  for  a  moiety.  Bac.  Uses,  5G.  Like  law  is,  if  the  king  be 
seised  of  land  in  the  right  of  his  duchy  of  Lancaster,  and  covenant  by  his  letters 
patent  under  the  duchy  seal  to  stand  seised  to  the  use  of  his  &on,  nothing  passeth. 
Ibid.  57.  Like  law,  if  King  Richard  the  Third,  who  was  feoffee  to  divers  uses  before 
he  took  upon  him  the  crown,  had,  after  he  was  king,  by  his  letters  patent  granted  the 
land  over,  the  uses  had  not  been  renewed.  Ibid.  The  king  shall  not  stand  seised  to  a 
use ;  for  all  the  lands  he  is  seised  of,  he  is  seised  in  jure  corona?  for  the  maintenance 
and  support  of  his  crown  and  dignity,  and  the  well-government  of  the  commonwealth, 
which  is  a  use  the  law  designed  him  primitus,  and,  consequently,  it  is  exclusive  of  all 
other  uses.  Neither  can  it  be  imagined  that  the  king  should,  in  point  of  honour, 
stand  seised  of  lands  only  to  the  benefit  and  advantage  of  another,  and  so  be  a  sort 
of  bailiff  to  him.     Gilb.  Uses,  170,  171. 

The  queen  (speaking  not  of  an  imperial  queen,  but  by  marriage)  cannot 
be  seised  to  a  use ;  for  though  she  be  a  body  enabled  to  grant  and  pur 
Vol.  X.— 18     ■  m2 


138  USES  AND  TRUSTS. 

(E)  Of  the  several  Sorts  of  Conveyances  to  Uses. 

chase  without  the  king,  yet,  in  regard  to  the  government  and  interest  the 
king  hath  in  her  possession,  she  cannot  be  seised  to  a  use. 

Ld.  Bacon  on  the  Statute  of  Uses,  347. 

Bodies  politic  are  not  capable  of  a  use  or  trust,  because  they  are  bodies 
framed  at  the  will  of  the  king,  and  are  no  further  capable  than  he  wills 
them  ;  and  it  is  his  will  that  they  should  purchase  for  the  common  benefit, 
and  for  the  ends  of  their  creation,  and  not  that  they  should  take  anything 
in  trust  for  others.  Besides,  being  incorporate,  the  Chancery  had  no  pro- 
cess on  the  persons  to  compel  them  to  discharge  their  trust.(a) 

Gilb.  Law  of  Uses,  5  ;  1  Rep.  122 ;  Poph.  72.  ||  See  Sir  E.  Sugden's  note,  Gilbert, 
p.  7. ||  [(a)  But  bodies  politic  may  be  trustees,  and  in  such  case  are  considered  in  a 
court  of  equity  as  individuals.  Mayor,  &c.  of  Coventry  v.  The  Attorney-General,  2 
Bro.  P.  C.  230 ;  2  Yes.  J.  4G.J 

Aliens,  and  persons  attainted,  are  not  capable  of  a  use,  for  they  can 

take  for  no  man's  benefit  but  the  king's. 

Gilb.  Law  of  Uses,  5  ;  1  Rep.  122  ;  Poph.  72.  The  king  shall  have  the  use  of  an 
alien,  because  as  his  allegiance  is  temporary,  so  ought  his  property  to  be.  All.  15  & 
1G :  Sty.  40 ;  Gilb.  Law  of  Uses,  43.     ||  See  ante,  p.  132.  || 

A  disseisor,  abator,  or  intruder,  cannot  be  seised  to  a  use,  for  they  take 
it  under  no  trust,  but  defeat  the  estate  to  which  the  trust  was  subjoined; 
and  the  Chancery  had  no  power  to  try  the  right  of  inheritance  between 
them,  for  the  right  of  that  title  is  triable  only  at  common  law.  But,  if  he 
who  has  the  use  exhibits  a  bill  against  the  feoffee  to  a  use,  the  Chancery 
will  order  him  to  try  the  title  with  the  disseisor  at  common  law. 

1  Rep.  122,  a,  139  b. 

A  lord  by  escheat  shall  not  be  seised  to  a  use,  because  he  is  in  by  a  title 
paramount,  and  seised  of  an  estate  antecedent  to  that  to  which  the  use  is 
annexed.  Lord  of  a  villain,  a  lord  that  enters  for  mortmain,  or  recovers 
by  cessavit,  or  a  tenant  by  the  courtesy  cannot  be  seised  to  a  use,  for  they 
claim  by  the  general  laws  and  statutes  of  the  kingdom,  which  the  Chancery 
has  no  power  to  alter,  and  do  not  take  as  substitutes  under  those  private 
contracts,  to  which  trusts  are  annexed,  and  so  cannot  be  punished  as  cor- 
rupt breakers  of  that  trust  which  they  never  undertook. 

1  Rep.  122  a  ;  Bro.  Feoff.  138  a. 

Tenant  in  tail  cannot  covenant  to  stand  seised  so  as  to  change  a  use, 
unless  during  his  own  life. 

Cro.  Jac.  400,  Cooper  v.  Franklin  ;  Hetl.  110,  Bromfield's  case.  None  can  be  seised 
to  the  use  of  another,  but  such  as  can  execute  an  estate  according  to  the  directions  of 
cestui  que  use,  which  tenant  in  tail  cannot ;  for  it  was  the  intent  of  the  statute  de  donis 
that  he  should  have  the  lands  and  the  profits  of  them  ;  and  if  he  should  execute  an 
estate  to  a  use,  his  issue  would  be  entitled  to  their  formedon.  Bro.  Feoff,  al  Uses,  pi. 
40 ;  2  Roll.  Abr.  780  ;  1  Inst.  19  b  ;  Gilb.  Law  of  Uses,  11,  and  205,  &c.  [Whether 
tenant  in  tail  can  stand  seised  to  a  use,  has  been  vexata  qucestio,  and,  indeed  does  not 
appear  to  be  quite  settled  at  this  time.  On  the  one  hand,  Lord  Coke,  (Co.  Litt.  19  b; 
2  Co.  78  a;)  Sir  G.  Croke,  (Cro.  Ja.  400,  401 ;  Bulstrode,  (3  Bulstr.  186;)  Sir  F. 
Moore,  (Moore,  848;)  and  Rolle,  (1  Roll.  R.  384;  2  Roll.  Abr.  780,)  expressly  tell 
us,  that  it  was  settled  in  the  case  of  Cooper  and  Franklyn,  that  a  tenant  in  tail  neither 
hi' fore  nor  since  the  statute  could  stand  seised  to  the  use  of  another  person,  expressly  or 
impliedly.  Whilst  on  the  other  hand,  Godbolt  directly  asserts,  that  the  case  of  Cooper 
and  Franklyn  was  determined  quite  the  contrary  ;  viz.,  that  a  tenant  in  tail  could  stand 
seised  to  an  express  use,  though  nut  to  an  implied  one,  (Godb.  209.)  And  Lord  Bacon, 
in  his  Reading  on  the  Statute  of  Uses,  gives  it  as  his  decided  opinion,  that  a  tenant  in 
tail  may  stand  seised  to  an  express  use  since  the  statute;  for  the  statute,  says  he,  does 
not  save  the  right  of  tenant  in  tail ;  and  the  reason  why  a  contrary  construction  was  had 
before  the  statute,  was  because  the  right  of  tenant  in  tail  was  expressly  saved  by  1 R.  3, 


USES  AND  TRUSTS.  139 

(E)  Of  the  several  Sorts  of  Conveyances  to  Uses. 

C.  1.  (Bac.  Uses,  57.)  Of  this  opinion  seem  also  Perkins,  (Perk.  \  534,  537  :)  Man- 
wood  in  Walsingham's  case,  (Plowd.  555,)  and  Dyer,  (Dy.  311  b,  312  a;)  and  Mr. 
Saunders  inclines  to  the  same  opinion,  in  his  Essay  on  the  Nature  and  Laws  <>('  Uses 
and  Trusts,  (Saund.  144,  145,  &c.)]  ||See  Gilb.  Law  of  Uses  by  Sugden,  p.  19,  note, 
and  Cornish  on  Uses,  p.  118.  || 

If  tenant  in  tail  by  indenture,  on  consideration  of  marriage,  covenants 
with  another  that  A  and  B  shall  be  seised  to  his  use  for  term  of  his  life, 
and  after  his  decease  to  the  use  of  his  son  and  heir  apparent ;  by  this 
covenant  there  is  no  use  changed,  unless  only  during  the  life  of  tenant 
in  tail. 

Per  cur.  Het.  110,  Bromfi eld's  case. 

So,  if  tenant  in  tail  covenants  to  stand  seised  to  the  use  of  himself  for 
life,  remainder  to  his  eldest  son  in  tail ;  since  he  had  only  the  power  of 
disposing  of  an  estate  for  life  by  the  statute  de  donis,  which  he  hath  not 
passed  out  of  himself,  it  is  still  in  him  as  it  was  before ;  and  the  remain- 
der is  void  in  its  creation,  and  .therefore  can  be  no  execution  of  it,  for 
the  execution  must  be  immediate  by  the  statute  of  uses ;  and  therefore  a 
fine  afterwards  levied  cannot  help  it. 

Cro.  Eliz.  895,  Bedingfield's  case. 

But,  if  tenant  in  tail  covenants  to  stand  seiscd(a)  to  the  use  of  A  and 
his  heirs,  or  to  the  use  of  A  for  life, (b)  remainder  to  B  in  fee,  the  cove- 
nant is  not  void,  but  puts  the  estate  out  of  the  covenantor.  Per  Holt, 
C.  J.,  in  delivering  the  opinion  of  the  court. 

2  Salk.  620,  Machil  v.  Clark,  (a)  The  covenant  is  good,  and  passes  a  base  fee  to  A. 
Per  Holt,  C.  J.,  Comyn's  R.  121,  pi.  84,  S.  C. ;  [Stapilton  v.  Stapilton,  1  Atk.  8,  S. 
P. ;  Goodright  v.  Mead,  3  Burr.  1703,  S.  P.]  {b)  And  the  remainder  is  good,  though 
the  tenant  in  tail  dies  during  the  life  of  A,  until  it  is  avoided  by  the  issue.  Comyns's 
R.  121.     Per  Holt,  C.  J.,  in  S.  C. 

Yet,  if  tenant  in  tail  covenants  to  stand  seised  to  the  use  of  A  and  his 

heirs  after  his  death,  it  is  void. 

2  Salk.  620,  Machil  v.  Clark,  7  Mod.  26,  S.  C.  &  P.,  because  it  is  to  commence  at 
a  time  when  the  right  of  the  estate  out  of  which  it  would  issue  is  in  another  person 
by  a  title  paramount  the  conveyance,  viz.,  per  formam  doni. 

So,  if  tenant  in  tail  covenants  to  stand  seised  to  the  use  of  himself 
for  life,  remainder  to  J  S  and  his  heirs,  it  is  void ;  for  the  remainder  is 
to  take  effect  after  his  death,  when  by  his  death  the  title  of  his  issue  com- 
mences ;  and  the  covenant,  as  to  the  estate  for  life  to  himself,  is  void,  in 
this  case,  because  there  is  no  transmutation  of  possession.  Such  a  cove- 
nant is  in  any  case  good  only  in  respect  of  the  remainders ;  and  since  the 
remainders  are  void,  the  covenant  and  the  first  estate  are  likewise  void. 

2  Salk.  620,  Machil  v.  Clark ;  7  Mod.  18-28,  S.  C.  accordingly. 

Likewise  a  tenant  for  years,  since  the  statute  of  uses,  cannot  be  seised 
to  any  use  ;  for  a  tenant  for  years  has  only  a  possession,  and  not  a  seisin 
which  the  statute  requires. 

Jenk.  195,  pi.  1. 

But  a  tenant  in  dower  may  be  seised  to  a  use,  for  a  tenant  in  dower 
claims  by  the  marriage  agreement,  and  a  sufficient  provision  is  made  for 
her  by  law,  which  is  a  third  part  of  her  husband's  estate ;  and  since  a 
private  contract  is  the  original  of  her  title,  she  continues  the  estate  of  her 
husband  as  he  purchased  it,  and  under  the  same  trust  and  agreement. 

Ilardr.  469  ;  Co.  Lit.  239  ;  4  Rep.  122 ;  contrcl,  Bro.  F.  to  Uses,  338,  \  40.  On  this 
point  we  find  several  contradictory  opinions  in  the  books.     Some  say  that  tenant  in 


140  USES  AND  TRUSTS. 

(E)  Of  the  several  Sorts  of  Conveyances  to  Uses. 

dower  claims  in  the  per,  that  is,  by  or  from  her  husband ;  according  to  others,  she  is 
in,  in  the  post,  and  claims  by  disposition  of  law,  and  does  not  come  in  by  privity  of 
estate.  Therefore  qu.,  and  consult  the  authorities  in  the  margin  ;  and  see  farther 
Gilb.  Law  of  Uses,  pi.  11  and  171. 

An  occupant  also  may  be  seised  to  a  use,  for  an  occupant  continues 
the  estate  of  tenant  for  life,  as  his  substitute,  and  so  must  take  it  as  he 
had  it. 

Hardr.  468.     But  see  Bro.  Feoff,  to  Uses,  338  a,  \  10,  contra. 

It  is  a  rule,  that  a  man  cannot  covenant  that  another  shall  stand  seised 
of  lands  whereof  the  seisin  is  in  himself,  for  this  will  not  raise  any  use,  but 
will  stand  merely  on  covenant.  Thus,  where  A  seised  in  fee,  in  considera- 
tion of  the  marriage  of  B,  his  son,  and  a  marriage  portion,  covenanted  to 
levy  a  fine  to  B,  and  that  B  should  stand  seised  to  the  use  of  A  the  father, 
and  his  heirs,  till  the  marriage  had,  and  after  to  B's  own  use  in  tail,  with 
divers  remainders  over ;  and  A  covenanted  in  the  same  deed,  that  he  was 
seised  in  fee,  and  so  should  be  till  the  use  vested  in  B  the  son ;  it  was 
resolved  by  Powell  and  Rooksby,  Js.,  the  only  judges  then  in  court,  that 
A  could  not  covenant  that  the  son  should  stand  seised  of  lands  whereof 
the  father  is  seised ;  and  the  subsequent  covenant  was  intended  against 
encumbrances  only,  as  is  usual  in  such  cases,  and  not  to  raise  any  use. 

3  Lev.  306,  Barrington  v.  Crane. 

2.  What  Consideration  is  necessary  to  a  Covenant  to  stand  seised,  and  hoicfar  it  extends. 

i  It  has  been  already  shown,  that  on  those  conveyances  by  which  uses 
are  raised  by  transmutation,  no  consideration  is  necessary ;  but  convey- 
ances by  covenant  to  stand  seised,  or  by  way  of  bargain  and  sale,  will  not 
operate  to  uses  without  a  consideration. (a) 

Cart.  '143,  Garnish  v.  Wentworth.  (a)  Considerations  to  raise  uses  are  threefold, 
as  considerations  of  blood  or  of  marriage,  (which,  as  will  be  shown,  are  good  consider- 
ations on  covenants  to  stand  seised,)  and  consideration  of  money,  which  is  the  only 
good  consideration  on  a  bargain  and  sale.     See  title  Bargain  and  StUe,  letter  (D). 

Lord  Bacon  says,  there  is  no  reason  in  the  law  why  a  deed  should  not  raise  a  use 
without  any  consideration.  But  he  adds,  that  it  is  a  reason  of  Chancery,  because  no 
court  of  conscience  will  enforce  donum  gratuitum.  But  where  money  is  paid  whereby 
a  man's  fortune  is  lessened,  or  where  it  is  for  the  establishment  of  his  family,  then 
it  is  good  in  Chancery.     Lord  Bacon's  Head,  on  Stat,  of  Uses,  310,  &c. 

With  respect  to  covenants  to  stand  seised,  considerations  of  blood  or 
of  marriage  are  good  considerations  to  raise  uses. 

{ In  New  York  a  deed  from  a  father  to  his  son  for  a  pecuniary  consideration  has  been 
holden  to  be  a  covenant  to  stand  seised.  In  England,  it  is  only  since  the  statute  of  en- 
rolments (27  II.  8,  c.  16)  that  it  has  been  established  that  no  considerations  but  blood 
or  marriage  are  sufficient  to  raise  a  use  by  way  of  covenant  to  stand  seised ;  before 
that  statute  covenants  to  stand  seised  could  be  supported  by  pecuniary  considerations. 
And  as  that  statute  was  never  in  force  in  New  York,  because  local  in  its  provisions, 
the  law  continues  there  as  it  was  previously  in  England.  1  Johns.  Ca.  91,  Jackson 
v.  Dunsbagh.     Sanders  on  Uses,  434 — 440. } 

And  first,  Of  consideration  of  blood.  If  a  man  parts  with  any  lands 
in  advancement  of  his  issue,  and  to  provide  for  the  contingencies  and 
necessary  settlements  of  his  family,  it  is  fit  the  Chancery  should  make 
them  good  conveyances,  though  they  want  the  ceremonies  of  law ;  for  it 
is  the  design  and  intent  of  the  Court  of  Equity  to  mitigate  the  severities 
of  law,  so  as  they  may  best  comply  with  the  peace  of  families ;  for  their 
establishment  is  part  of  the  nature  and  end  of  government. 

Gilb.  Law  of  Uses,  47 ;  Cart.  139,  Garnish  v.  Wentworth. 


USES  AND   TRUSTS.  141 

(E)  Of  the  several  Sorts  of  Conveyances  to  Uses. 

Therefore,  if  a  man,  in  consideration  of  natural  love  and  affection,  cove- 
nants to  stand  seised  to  the  use  of  his  son  or  brother,  this  is  a  good  u-c. 

Gilb.  Law  of  Uses,  47  ;  Cart.  139,  Garnish  v.  Wentworth. 

A  consideration  of  natural  affection  expressed  to  one  child  will,  by  con- 
struction of  law,  be  extended  to  others.  Thus,  if  a  man  having  issue 
three  sons,  covenants  in  consideration  of  natural  affection  to  the  eldest 
son,  to  stand  seised  of  certain  land  to  the  use  of  himself  for  life,  and  after 
to  his  eldest  son,  and  the  heirs  male  of  his  body ;  and  for  default  of  such 
issue,  to  the  use  of  his  second  son  and  the  heirs  male  of  his  body ;  and 
for  default  of  such  issue,  to  the  use  of  the  third  son,  &c. ;  this  is  a  good 
consideration  to  raise  the  use  to  his  younger  sons ;  for  though  the  con- 
sideration of  natural  affection  be  limited  only  to  the  eldest,  yet  this  is 
equal  to  all  the  sons,  and  therefore  the  law  will  supply  it  without  expres- 
sion ;  for  if  nothing  had  been  expressed,  it  had  been  a  good  consideration 
by  implication  of  law. 

2  Roll.  Abr.  782,  783,  between  Bond  and  Edmonds,  per  curiam. 

The  consideration  of  natural  affection  is  good  likewise  to  raise  a  use  to 
children  unborn.  Thus,  consideration  of  affection  to  the  heirs  male  of 
the  covenantor  which  he  should  beget  on  the  body  of  A  his  wife,  is  a 
good  consideration  to  raise  a  use  by  way  of  covenant  to  the  said  heirs  of 
his  body,  for  every  one  is  bound  in  nature  to  provide  for  his  children. 

Plow.  R.  303,  Sharlington  et  al.  v.  Strotton.  ||  This  important  case  is  full  of  legal 
learning,  and  of  the  scholastic  conceits  and  pedantries  peculiar  to  the  times.  || 

So,  for  advancement  of  his  heirs  male,  a  man  may  covenant  to  stand 
seised  to  the  use  of  himself  and  the  heirs  male  of  his  body ;  and  thus  shall 
raise  a  good  estate-tail :  for  though  all  the  estate-tail  is  in  himself,  yet  this  is 
for  the  benefit  of  the  heir  male  though  it  is  in  futuro,  and  not  in  prcesenti, 
for  none  can  know  who  shall  be  his  heir;  for  solus  Deusfacit  hceredes. 

7  Rep.  13  b,  [14  a,]  Englefield's  case.  The  reason  is,  for  that  a  man  may  modify 
a  fee  that  continues  in  him,  though  he  cannot  take  a  fee  as  de  novo  when  he  has  the 
old  one  in  him.     Gilb.  Law  of  Uses,  209. 

But  if  a  man,  in  consideration  of  his  care  and  love  which  he  bears  to 
J  S,  called,  named,  and  reputed  one  of  his  sons,  (where  he  was  his  bas- 
tard son,)  covenants  to  stand  seised  to  the  use  of  the  said  J  S,  this  is  no 
good  consideration  to  raise  any  use. 

2  Roll.  Abr.  785 ;  Dyer,  374,  pi.  16,  "Worseley's  case.  The  reason  is,  for  that  in 
law  he  is  not  supposed  to  be  of  the  blood  of  his  father,  but  is  considered  as  a  mere 
stranger,  for  whom  no  one  is  presumed  to  have  a  natural  affection.  See  the  case 
last  mentioned,  and  see  Gilb.  Law  of  Uses,  48  and  206.  But  a  bastard  may  take  by 
feoffment,  though  not  by  covenant  to  stand  seised  in  consideration  of  natural  affection. 
1  Leo.  197,  Lord  Pagett's  case. 

So,  likewise,  if  a  man  covenants,  in  consideration  of  blood  and  of  the 
marriage  of  his  bastard  daughter,  to  stand  seised  to  the  use  of  the  bastard 
daughter,  this  is  not  a  good  consideration  to  raise  a  use,  because  in  the 
law  she  is  not  his  daughter,  but  filia  populi. 

2  Roll.  Abr.  785,  between  Frampton  and  Gerard.  But,  if  a  man  covenants,  in  con- 
sideration of  natural  love  and  affection,  blood  and  marriage  of  his  bastard  daughter, 
to  levy  a  fine,  and  that  the  conusee  shall  stand  seised  to  the  use  of  the  bastard  daughter, 
though  this  be  not  a  sufficient  consideration  to  raise  a  use  upon  a  covenant,  yet  it  ia 
expressive  of  the  intent  of  the  party,  and  therefore  shall  serve  as  a  sufficient  declaration 
of  a  use  upon  the  fine,  where  there  needs  no  consideration.    Gilb.  Law  of  Uses,  207. 

Fraternal  love,  and  continuance  of  the  land  in  such  of  the  blood  of  the 
covenantor,  is  a  good  consideration  to  raise  a  use  by  way  of  covenant ;  for 


142  USES   AND  TRUSTS. 

(E)  Of  the  several  Sorts  of  Conveyances  to  Uses. 

this  is  a  consideration  of  blood,  and  the  brother  is  one  of  the  next  de- 
grees after  his  parents  and  children  ;  and  they  who  are  next  in  blood  are 
next  in  love  by  intendment  of  the  law. 

2  Roll.  Abr.  785,  cites  PL  Cr.  307,  [Sherington  and  Pledat  v.  Stratton. 

Thus  if  A  by  indenture  made  between  him  of  the  one  part,  and  B  his 
brother,  (naming  him  so  in  the  deed,)  and  C  and  D  who  are  strangers  to 
him,  in  consideration  of  love  and  affection  which  he  bears  towards  his 
wife  and  children,  and  for  their  maintenance  and  stay  of  living,  and  to 
the  intent  to  settle  his  land  in  his  name  and  blood,  covenants  with  the 
said  B,  C,  and  D,  to  stand  seised  to  the  use  of  himself  for  life,  and  after 
to  his  wife  for  life,  and  after  to  the  said  B,  C,  and  D,  and  their  heirs 
upon  trust,  that  they  should  make  such  uses  as  he  himself  shall  appoint, 
and  after  to  raise  portions  for  his  children,  and  after  to  Gr  his  second  son 
in  tail,  &c,  though  no  use  can  arise  by  this  indenture  to  C  and  D,  who 
are  strangers  to  the  consideration  of  blood,  and  so  this  is  void  as  to  them  ; 
yet  the  use  shall  arise  for  all  to  B,  who  is  his  brother,  and  so  named  in 
the  deed,  which  is  within  the  consideration.  Trin.  14  Car.  This  was  a 
special  verdict  between  Fox  and  Wilcocks,  and  argued  at  the  bar,  but  it 
abated  by  death.  And  after,  upon  a  new  special  verdict  between  Smith 
and  Busbie,  it  was  adjudged  per  curiam,  that  the  use  shall  well  arise  to 
B  to  perform  the  trusts  specified  in  the  indenture. 

2  Roll.  Abr.  783  ;  S.  C,  Cro.  Car.  529,  by  the  name  of  Smith  v.  Risley  et  al. ;  S. 
C,  Sir  Wm.  Jo.  41S,  by  the  name  of  German  v.  Risley. 

But  consideration  of  ancient  acquaintance,  or  of  being  chamber  fellows, 
or  entire  friends,  shall  not  raise  any  use.  Agreed  per  cur.  between  Ward 
and  Tuddingham. 

2  Roll.  Abr.  783. 

Also,  if  a  man,  in  consideration  that  B  was  bound  in  a  recognisance  for 
him,  bargains  and  sells  land  to  the  other,  that  is  not  good. 

2  Roll.  Abr.  783,  adjudged  between  Ward  and  Lumbard. 

Neither  will  the  consideration  of  a  surname  raise  a  use,  as  was  resolved 
in  Sir  Christopher  Hatton's  case,  who  had  a  sister's  son  called  Newport, 
and  in  consideration  of  his  changing  his  name  to  Hatton,  he  covenants  by 
deed  to  raise  a  use  to  him,  this  consideration  was  adjudged  not  sufficient 

to  raise  a  use. 
Jenk.  81,  pi.  60. 

2.  With  respect  to  considerations  of  marriage, — A  man  may  covenant 
to  stand  seised  to  the  use  of  A  his  wife,  and  the  consideration  that  she 
is  his  wife  will  raise  a  good  estate  to  her,  for  this  is  a  good  consideration 
in  law. 

Thus,  if  in  an  indenture  between  A  and  his  wife  of  the  first  part,  and 
B  their  son  of  the  second  part,  and  C  their  son  of  the  third  part,  the 
said  A,  in  consideration  of  natural  affection  and  paternal  love  which  he 
has  to  his  said  sons,  and  for  their  better  advancement,  and  to  the  intent 
that  the  lands  should  continue  in  his  name  and  blood,  covenants  to  stand 
seised  to  the  use  of  himself  for  life,  the  remainder  to  his  said  wife  for 
life,  the  remainder  to  his  said  sons ;  here,  the  use  limited  to  the  wife 
imports  a  consideration  of  itself. 

7  Rep.  40,  Bedall's  case. 

Likewise  a  man  may  covenant  to  stand  seised  to  the  use  of  A,  the  wife 
of  his  brother,  in  consideration  that  she  is  the  wife  of  his  brother,  and  this 


USES  AND  TRUSTS.  143 

(E)  Of  the  several  Sorts  of  Conveyances  to  Uses. 

shall  raise  a  good  estate  to  her ;  for  the  love  -which  he  bears  towards  his 
brother,  extends  in  his  right  to  his  wife. 
Plow.  R.  307,  Sharington  v.  Strotton. 

So  also,  the  consideration  of  marriage  to  be  had,  will  raise  a  use,  be- 
cause the  present  estate  is  to  the  baron,  and  what  is  limited  to  the  feme 
is  only  a  remainder ;  per  Twisden,  J. 

Sid.  83,  in  case  of  Stephens  v.  Brittridge. 

Likewise,  if  a  man  covenants  in  consideration  of  natural  love  and  affec- 
tion to  his  son,  to  stand  seised  to  the  use  of  his  son  for  life,  the  remainder 
to  such  wife  as  the  son  shall  afterwards  have  for  life,  the  remainder  to  the 
first  son  of  the  son  and  wife  begotten,  &c. ;  though  the  wife  be  a  stranger 
to  the  consideration,  (admitting  it,)  yet  the  estate  limited  to  her  is  well 
raised  for  the  subsequent  estate  which  is  within  the  consideration. 

2  Roll.  Abr.  786,  between  Bould  and  Winston ;  Nov,  122,  S.  C.  The  wife  is  within 
the  consideration,  because  the  covenantor  intended  the  advancement  of  his  posterity, 
and  without  a  wife  the  son  cannot  have  a  lawful  posterity. 

But,  if  a  man,  in  consideration  that  B  shall  marry  his  daughter,  cove- 
nants to  stand  seised  to  the  use  of  B  and  his  daughter,  the  remainder  to  C, 
this  is  a  void  remainder  to  C,  because  he  is  a  stranger  to  the  consideration. 

Plow.  R.  307,  Sharington  v.  Strotton. 

It  is  to  be  observed  farther  with  regard  to  the  extent  of  these  consi- 
derations, that  if  a  man  covenants  upon  consideration  to  be  seised  to  the 
use  of  himself  for  life,  and  after  to  the  use  of  his  son  ;  but  he  says  further, 
that  his  meaning  is,  that  his  wife  shall  have  it  for  her  life ;  per  Periam, 
J. — This  is  not  a  void  clause,  but  good  to  the  wife. 

Ow.  85,  in  Carter  v.  Kingsted. 

So  also,  where  A,  in  consideration  of  love,  and  for  settling  the  land  in 
his  name  and  blood  to  his  eldest  son,  covenants  to  convey  before  Easter 
in  trust  for  himself  for  life,  remainder  to  B  his  eldest  son  in  tail,  &c,  and 
also  covenants  to  stand  seised  from  and  after  Easter,  of  so  much  of  the 
said  lands  as  should  not  be  sufficiently  conveyed,  to  the  said  several  uses, 
intents,  and  purposes,  and  no  assurances  were  made  before  Easter ;  it 
was  resolved,  that  the  uses  and  estates  raised  by  this  covenant  being  in 
consideration  of  love  to  his  son,  &c,  (no  estate  at  all  being  executed 
before  Easter,)  the  covenant  extended  to  all :  though  it  was  objected  that 
the  words  being,  that  of  so  much  of  the  lands,  &c,  the  intent  was  that 
he  would  stand  seised  when  part  was  executed  and  sufficiently  conveyed, 
but  when  no  part  was  executed,  it  was  not  his  intent  that  all  should  be 
raised  by  covenant ;  but  this  was  not  allowed,  for  the  consideration  being 
sufficient,  the  covenant  well  extends  to  all,  there  being  nothing  conveyed 
by  the  estate  executed. 

Cro.  Ja.  180,  pi.  19,  Cross  v.  Faustenditch. 

There  is  a  difference  between  a  covenant  to  stand  seised  and  a  feoff- 
ment ;  for  if  a  man  covenants  to  stand  seised  to  the  use  of  A,  a  stranger,  for 
years,  &c,  remainder  to  B  his  son  in  tail,  this  is  void  as  to  A  for  want 
of  a  consideration,  and  the  use  vests  immediately  in  B,  and  a  void  use  is 
as  if  no  use  be  limited;  and  if  no  use  be  limited,  B  must  take  immediately, 
and  not  by  way  of  remainder,  else  he  cannot  take  at  all ;  for  a  remainder 
ex  vi  termini  supposes  a  particular  estate,  and  B  must  not  be  excluded, 
because  uses  being  creatures  of  equity,  the  intent  of  the  parties  must  be 

0 


144  USES  AND  TRUSTS. 

(E)  Of  the  several  Sorts  of  Conveyances  to  Uses. 

made  good  as  far  as  possible,  where  there  is  a  just  and  good  ground  fci 
any  part  of  the  conveyance. 

1  Leon.  195,  et  sequent.,  Lord  Paget's  case.  But  see  Plow.  Com.  307,  contrcl.  And 
a  distinction  is  there  taken,  that  if  the  limitation  to  the  stranger  precedes  the  limita- 
tion to  the  blood  of  the  covenantor,  there  it  is  good  to  the  stranger ;  but  that  if  it  is 
subsequent,  it  is  void.     Therefore  Qu.    Gilb.  Law  of  Uses,  113. 

But,  if  a  man  makes  a  feoffment  in  fee  to  the  use  of  A  and  a  stranger, 
or  bastard  for  life,  the  remainder  to  his  son  in  tail,  this  is  good  to  A; 
for  upon  a  feoffment  there  needs  no  consideration  to  raise  the  use,  as  has 
been  said. 

1  Leon.  197,  Lord  Paget's  case. 

There  is  another  difference  likewise  observable ;  for  if  a  man  raises 
uses  upon  a  fine,  feoffment,  or  recovery,  he  may  reserve  to  himself  a 
power  of  making  leases ;  but  he  cannot  do  it  on  a  covenant  to  stand 
seised,  or  on  a  bargain  and  sale ;  for  upon  a  fine,  feoffment,  or  recovery, 
a  use  may  be  raised  without  a  consideration,  and  therefore  will  arise  to 
the  lessees  without  consideration ;  and  the  former  estates  which  were 
raised  without  consideration,  may  be  defeated  without  it ;  but  in  a  bar- 
gain and  sale,  and  covenant  to  stand  seised,  no  uses  will  arise  without 
consideration,  therefore  not  to  the  lessees ;  for  where  the  persons  are 
altogether  uncertain,  and  the  terms  unknown,  there  can  be  no  consider- 
ation ;  for  which  reason,  the  former  estates,  raised  upon  good  consider- 
ation, cannot  by  such  lessees  be  defeated. 

1  Pep.  170  b,  Mildmay's  case. 

[Where  there  is  a  feoffment  by  deed  to  a  relation  and  his  heirs,  but 
nothing  can  pass  by  the  feoffment  for  want  of  livery  of  seisin ;  yet  as 
there  is  an  agreement  by  deed,  and  the  parties  are  relations,  the  law  holds 
that  a  consideration  for  raising  a  use,  and  construes  it  a  covenant  to 
stand  seised  to  the  use  of  the  person  specified  in  fee ;  and  the  estate 
passes,  not  by  feoffment,  as  the  deed  says,  but  by  virtue  of  the  statute 
of  uses ;  and  ut  res  magis  valeat,  <fc,  that  instrument  called  a  feoffment 
shall  operate  as  a  covenant  to  stand  seised. 

Per  Wilson,  J.,  2  Ves.  J.  22G.  |]  This  construction  has  prevailed  even  in  a  case 
where  the  land  was  conveyed  by  lease  and  release,  but  the  release,  as  such,  was  void, 
because  it  limited  a  freehold  to  commence  infuturo.  Lord  C.  J.  Willes,  in  delivering 
judgment,  said,  that  although  formerly,  according  to  some  cases,  the  mode  or  form  of 
it  conveyance  was  held  material,  yet  in  later  times,  where  the  intent  appears  that  the 
land  shall  pass,  it  has  been  ruled  otherwise,  and  he  approved  of  the  rule.  As  to  Samon 
v.  -Tones,  and  llore  v.  Dix,  he  said  he  did  not  understand  them;  and  if  he  had  sat  in 
judgment  on  those  cases  he  should  have  been  of  a  different  opinion.  See  Roe  v.  Tran- 
mer,  2  Wils.  75;  Willes,  G02;  and  he  expressed  an  opinion  against  those  cases  in 
Doe  v.  Salkeld,  Willes,  073;  and  see  Thompson  v.  Attfield,  1  Vera.  40;  Shove  v. 
Pincke,  5  Term  It.  124,  310;  Ex  parte  Earl  of  Ilchester,  7  Ves.  374.|| 

3.  By  what  Words  a  Man  may  covenant  to  stand  seised. 

It  is  a  general  rule,  that  words  shall  be  construed  so  that  the  deed 
may  stand  if  possible. 
March,  50. 

Thus,  if  a  man,  in  consideration  of  natural  love,  and  for  augmentation 
of  his  daughter's  portion,  gives,  grants,  bargains,  and  sells,  aliens,  en- 
feoffs, and  confirms,  certain  lands  to  J  S  his  daughter,  with  a  special  war- 
ranty, and  the  deed  is  enrolled,  this  enures  by  way  of  covenant  to  stand 
seised  in  respect  to  the  consideration. 

Vent.  138,  et  sequent.,  Crossing  v.  Scudamore. 


USES  AND  TRUSTS.  145 

(E)  Of  the  several  Sorts  of  Conveyances  to  Uses. 

But,  if  the  consideration  be  not  expressed  in  the  deed,  it  seems  nn 
use  arises. 

Gilb.  Law  of  Uses,  115. 

Likewise  if  a  man,  in  consideration  of  marriage  of  his  son's  daughter, 
covenants  that  his  land  shall  descend,  come,  and  remain  to  him  or  her, 
this  is  only  a  covenant  executory,  upon  which  an  action  lies,  and  the  force 
of  the  covenant  is  not  to  alter  the  descent ;  but  it  is  no  covenant  to  stand 
seised,  whereby  he  may  be  entitled  in  Chancery  to  a  specific  performance. 

Moor,  122,  pi.  267;  Cro.  Eliz.  279  ;  Blitheman  v.  Blitheman,  Gilb.  Law  of  Uses, 
115.  Here  the  seisin  of  the  father  is  not  appropriated  to  the  several  uses,  but  only  a 
remainder  limited  after  the  father's  death,  which  cannot  be  without  a  particular  estate, 
nor  that  without  a  particular  contract,  and  no  man  can  contract  with  himself.  Gilb. 
Law  of  Uses,  00. 

Also,  if  a  man  seised  of  a  reversion  expectant  upon  an  estate  for  life, 
gives,  grants,  and  confirms  the  same  to  his  son  in  fee,  in  consideration  of 
natural  love  and  affection  expressed  in  the  deed,  to  the  use  of  himself 
for  life,  the  remainder  to  his  son  in  tail,  the  remainder  to  a  daughter, 
without  attornment  or  enrolment,  this  conveyance  is  void,  and  cannot 
endure  by  way  of  covenant  to  stand  seised,  for  if  it  enures  by  way  of 
covenant  to  stand  seised,  the  legal  estate,  out  of  which  the  uses  rise* 
remains  in  the  covenantor :  but  the  intent  of  the  conveyance  is  to  raise 
the  uses  by  way  of  transmutation  of  possession,  and  to  transfer  the  free- 
hold, out  of  which  the  uses  are  to  rise  to  the  son ;  but  this  conveyance 
will  not  pass  that  freehold  for  want  of  attornment,  and  so  the  uses  can 
never  arise  by  this  deed. 

2  Vent.  38  ;  Samon  v.  Jones,  Sid.  25  ;  Hore  v.  Dix,  Gilb.  Law  of  Uses,  115.  ||See 
observations  of  Willes,  C.  J.,  on  these  cases.  2  Wils.  75  ;  Willes,  673,  682;  and  see 
Gilb.  on  Uses  by  Sugden,  253,  notd.\\ 

So,  where  A,  seised  of  land  in  possession  and  in  use,  covenanted  on 
the  marriage  of  his  son  with  the  daughter  of  J  S  that  the  son,  immediately 
after  his  decease,  should  have  in  possession  or  in  use  all  his  lands  accord- 
ing to  the  same  course  of  inheritance  they  then  stood  in ;  and  that  all' 
persons  then  seised,  or  thereafter  to  be  seised,  should  be  seised  to  the 
same  use  and  intent ;  it  was  held,  that  the  fee-simple  of  the  use  was  not 
out  of  the  father,  nor  was  it  changed,  and  that,  as  it  was,  it  was  only  a 
covenant :  but  perhaps  it  might  be  otherwise,  had  the  words  been,  that 
immediately  after  his  decease  the  land  should  enure  and  remain  to  the  son. 
Dy.  55,  Lord  Burgh's  case. 

So,  where  the  father,  in  consideration  of  marrying  his  son,  covenants, 
&c,  that  he,  &c,  has  not  made,  nor  shall  make  any  grant,  &c,  of  the 
said  lands,  but  that  all  the  said  lands,  &c,  shall  descend,  remain,  and 
come  in  possession  and  use  to  the  said  son  and  the  heirs  male  of  his 
body,  &c,  no  use  is  created  or  altered  by  those  words. 

And.  25,  pi.  55.     ||See  Gilbert  by  Sugden,  p.  109.|| 

Bridgman,  C.  J.,  took  a  difference  between  covenants  obligatory  and 
covenants  declaratory ;  for  covenants  declaratory  serve  to  limit  and 
direct  uses,  but  covenants  obligatory  (as  for  enjoyment  free  of  encum- 
brances) shall  never  be  construed  to  raise  a  use>  inasmuch  as  they  have 
another  effect. 

Sid.  27,  pi.  7,  in  case  of  Hore  v.  Dix. 

Vol.  X.— 19  N 


146  USES  AND  TRUSTS. 

(E)  Of  the  several  Sorts  of  Conveyances  to  Uses. 
4.  The  Effect  of  a  Covenant  to  stand  seised. 

It  is  a  rule,  that  no  covenant  to  stand  seised  can  pass  a  use  unless  the 
covenantor  has  seisin  of  the  estate  at  the  time  of  the  contract.     Thus, 

If  a  man  covenants  to  stand  seised  of  the  manor  of  D,  which  he  shall 
hereafter  purchase,  to  the  use  of  J  S,  and  he  afterwards  purchases  the 
manor,  yet  this  is  void. 

2  Roll   Abr.  790. 

So,  if  a  man  covenants  to  stand  seised  of  the  land  that  he  shall  here- 
after purchase  to  the  use  of  his  son,  and  after  purchases  land  to  the  use 
•of  himself  and  his  heirs,  the  fee  is  in  the  father. 

Noy,  19,  Yelverton  v.  Yelverton ;  Cro.  Eliz.  401,  S.  C. 

For  if  a  man  binds  any  lands,  you  must  suppose  him  to  have  a  power 
to  oblige  them ;  but  he  that  hath  no  interest,  hath  no  power  to  oblige 
them ;  and  therefore  such  a  covenant  in  equity,  before  the  statute,  could 
not  oblige  "him  to  a  specific  performance,  for  that  were  in  equity  to  bind 
the  land,  which  is  absurd;  and  since  the  covenant  is  void  in  equity,  there 
can  be  no  execution  by  the  statute  ;  for  the  rules  of  law  are  equally  strict 
in  avoiding  this  repugnancy ;  for  in  law,  every  disposal  supposes  a  pre- 
cedent property;  and,  by  consequence,  every  covenant  to  stand  seised 
presupposes  a  precedent  seisin. 

Gill).  Law  of  Uses,  116. 

||  So,  if  there  are  two  joint-tenants  in  fee,  and  one  covenants  that  after 
the  death  of  his  companion  he  will  stand  seised  of  the  moiety  of  his  com- 
panion to  certain  uses,  although  the  covenantor  survives,  no  use  shall 
arise ;  because  at  the  time  of  the  covenant  he  could  not  grant  or  charge 
his  moiety. 

Barton's  Ca.,  2  Roll.  Abr.  790,  pi.  9.|| 

Another  reason  why  the  use  declared  upon  the  covenant  is  bad,  is  this: 
because  the  use  must  be  limited  by  the  donor  or  feoffor ;  for  he  must  limit 
the  use,  who  at  the  time  of  the  limitation  had  the  disposal :  now  in  this 
case  the  donor  limits  the  fee  to  the  purchaser,  which  controls  the  intent 
of  the  covenant. 

Cro.  Eliz.  401  ;  Noy,  19. 

By  the  same  rule  it  is  said,  that  if  the  mortgagor,  in  consideration  of 
so  much  money  paid  by  J  S,  covenants,  that  after  redemption  he  will 
stand  seised  to  the  use  of  J  S  and  his  heirs,(a)  this  is  a  void  covenant : 
but,  if  a  feoffment  be  made  to  A  to  enfeoff  B,  to  the  use  of  C,  and  A  en- 
feoff B  without  the  limitation  of  any  use :  jet  it  shall  be  to  the  use  of  C. 

Cro.  Eliz.  402,  Yelverton  v.  Yclvertqn ;  Noy,  1,  S.  C.  (a)  The  reason  is,  for  that 
at  the  time  of  the  contract  he  had  no  estate  or  interest. 

So,  if  a  man  covenant  to  purchase  land  by  Michaelmas  next,  and  before 
Easter  following  to  levy  a  fine  to  such  uses,  and  accordingly  purchase  land, 
and  levy  a  fine,  without  expressing  any  use,  or  without  a  consideration, 
notwithstanding  the  law  says  it  shall  be  to  the  use  of  the  conusor,  yet  it 
may  be  averred  to  be  to  the  uses  limited  in  the  first  covenant. 

Cro.  Eliz.  401 ;  Noy,  19.  But  it  is  said  in  Noy,  that  if  another  use  had  been  ex- 
pressed in  the  fine,  that  should  have  controlled  the  first  declaration  of  the  use. 

For  a  man  may  declare  the  intent  of  a  future  act  which  he  had  no 
power  to  do  at  the  time  of  the  declaration ;  for  to  declare  the  intent  of  a 
future  act,  doth  not  suppose  an  immediate  power  of  doing  it ;  but  the  do- 


USES  AND  TRUSTS.  147 

(E)  Of  the  several  Sorts  of  Conveyances  to  Uses. 

ing  any  act  itself,  which  the  law  allows  to  be  good  and  effectual,  presup- 
poses the  power  of  doing. 
Gilb.  Law  of  Uses,  117. 

If  a  man  seised  of  three  acres,  makes  a  lease  of  one  to  A  for  life,  and 
of  another  to  B  for  life,  and  of  another  to  C  in  tail,  and  then,  reciting 
the  several  estates,  covenants,  after  all  the  estates  finished,  to  stand 
seised  to  the  use  of  his  brother  in  fee ;  if  A  dies,  the  brother  shall  have 
the  reversion  of  that  acre  immediately,  and  not  expect  till  the  other 
estates,  that  is,  the  other  estate  for  life  and  the  estate-tail,  are  determined ; 
for  it  must  be  construed  secundam  subjectam  materiam  ;  and  the  cove- 
nantor hath  three  distinct  reversions  in  him. 

5  Rep.  8  b ;  Justice  Windham's  case,  Gilb.  Law  of  Uses,  114. 

It  is  a  rule,  likewise,  that  a  fee  cannot  be  raised  by  way  of  purchase 
to  a  man's  right  heirs,  for  wherever  the  heir  takes  by  purchase,  the 
ancestor  must  depart  with  his  whole  fee.  Thus,  A  seised  in  fee  had  issue 
two  sons,  B  and  C ;  A  covenanted  to  stand  seised  to  the  use  of  B  and 
the  heirs  male  of  his  body  on  M  his  wife  to  be  begotten ;  and  for  want 
of  such  issue,  to  the  heirs  male  of  the  covenantor ;  and  for  want  of  such 
issue,  to  his  own  right  heirs  for  ever.  B  had  issue  of  M  a  son  and  a 
daughter ;  A  dies,  and  then  the  son  dies ;  the  daughter  shall  not  take  as 
heir  general,  but  the  uncle,  viz.  C,  shall  be  taken  per  for  mam  doni,  and 
not  by  purchase,  but  by  descent. 

2  Mod.  207,  211 ;   ||1  Freem.  225,  ||  Southcot  v.  Stowel. 

It  is  to  be  observed,  likewise,  that  uses  may  arise  on  covenants  to 
stand  seised  by  implication  ;  as, 

If  a  man  covenants  to  stand  seised  to  the  use  of  the  heirs  male  of  his 
body,  omitting  himself,  per  three  justices,  but  Twisden,  J.,  contra,  it  is 
good,  and  he  himself  takes  by  implication :  and  so  judgment  was  given 
for  the  defendant. 

Vent.  372,  Pibus  v.  Mitford.     ||See  Gilb.  on  Uses,  by  Sugden,  119,  nota.\\ 

But,  where  A  made  a  feoffment  to  the  use  of  himself  for  life,  and  after 
his  death  and  the  death  of  M  his  wife,  to  B  his  son  in  tail ;  it  was  held 
in  this  case,  that  no  implied  use  did  arise  to  M,  and  therefore  the  estate 
to  B  was  contingent. 

Pollex.  94,  Carpenter  v.  Smith. 

It  has  been  held,  likewise,  that  a  covenant  to  stand  seised  to  the  uses 
in  the  indenture,  and  to  no  other,  cannot  exclude  uses  by  implication, 
but  only  express  uses. 

2  Lev.  76,  Arg.  in  case  of  Pibus  v.  Mitford. 

||  A  covenant  to  stand  seised  is  an  innocent  conveyance,  and  therefore 
will  not  create  a  discontinuance,  or  operate  as  a  forfeiture. 

Gilbert,  by  Sugden,  p.  258.  || 

3.   Of  the  Nature  and  Operation  of  a  Bargain  and  Sale  to  Uses. 

The  nature  and  effect  of  this  kind  of  assurance  has  been  already  ex- 
plained ;(«)  and  having  thus  treated  of  the  several  sorts  of  conveyances 
to  uses,  we  proceed  to  show — 

(a)  See  title  Bargain  and  Sale,  Vol.  ii.  p.  1. 

pThe  bargain  and  payment  of  the  money  vests  the  use;  and  the 
statute  of  uses,  the  possession. 

Kussel  v.  Stinson,  3  llayw.  5.gf 


148  USES  AND  TRUSTS. 

(F)  What  Kind  of  Property  may  be  conveyed  by  way  of  Use. 

All  lands  and  inheritances  local,  as  rents  in  esse,  advowsons  in  gvoss7 
common  for  so  many  beasts,  liberties,  franchises,  visible  or  local,  may  be 
conveyed  by  way  of  use. 

Sir  Win.  Jo.  127,  by  Dodderidge,  J.,  in  Pari,  in  Lord  Willoughby's  case. 

But  inheritances  personal,  which  have  no  relation  to  lands  or  local 
hereditaments,  cannot  be  conveyed  by  way  of  use,  as  annuities. 

Sir  Wm.  Jo.  127,  by  Dodderidge,  J.,  in  Pari,  in  Lord  Willoughby's  case. 

A  seigniory,  however,  consisting  of  homage  and  fealty,  the  service 
being  merely  personal,  and  to  be  performed  by  the  person  of  a  man,  and 
resting  in  feasance,  may  be  granted  to  a  use  in  respect  of  the  possibility 
that  the  tenancy  may  escheat,  which  perhaps  never  will  be. 

Per  Crew,  C.  J.,  Sir  Wm.  Jo.  117,  in  Lord  Willoughby's  case. 

So,  a  stewardship  or  bailiwick  in  fee-simple  of  a  manor  may  be  granted 
to  a  use,  being  personal  offices  in  point  of  service. 

Per  Crew,  C.  J.,  Jo.  117,  in  Ld.  Willoughby's  case. 

So,  a  liberty  of  retorna  brevium,  which  is  personal,  consisting  in 
execution  of  process. 

Per  Crew,  C.  J.,  Jo.  118,  in  Ld.  Willoughby's  case,  cites  it  as  ruled,  42  Eliz.  B.  R. 
in  the  Countess  of  Warwick's  case. 

So,  of  a  shrievalty  of  a  county.     And, 

Where  it  is  said,  that  a  trust  cannot  be  raised  out  of  a  trust,  and  there- 
fore a  bargain  and  sale  by  deed  indented  and  enrolled  cannot  be  limited 
to  a  use,  because  a  use  cannot  be  limited  to  a  use,  yet,  notwithstanding, 
when  a  man  is  seised  of  an  estate  of  an  inheritance  of  an  office  holden  by 
grand  serjeantry,  wherein  there  is  required  trust  in  the  person,  yet  a  use, 
which  is  a  pernancy  of  the  profits  belonging  to  that  office,  may  be  raised 
out  of  the  estate  of  inheritance,  otherwise  no  land  holden  by  grand  ser- 
jeantry could  be  transferred  to  a  use,  nor  any  use  raised  out  of  the  same. 

Per  Crew,  C.  J.,  Jo.  117,  in  Ld.  Willoughby's  case.  And  it  is  there  farther  said, 
that  there  is  a  diversity  between  a  mere  and  a  naked  trust,  wherein  he  that  hath  it, 
hath  neither  jus  in,  re,  nor  jus  ad  rem,  nor  remedy  by  the  common  law,  but  only  a 
mere  perception  of  the  profits  by  the  permission  of  the  terre-tenant ;  and  an  estate  of 
inheritance,  wherein  the  owner  hath  both /us  in  re,  and  jus  ad  rem,  by  the  rule  of  the 
common  law,  and  for  the  profit  whereof  the  law  giveth  the  owner  remedy  by  writ  of 
assize,  and  &  praecipe  quod  reddat,  as  the  case  requireth ;  and  the  confidence  required 
in  the  person  for  executing  the  office  may  be  an  objection  (though  a  weak  one)  that 
it  cannot  be  transferred  over  ;  but  that  a  use,  that  is,  a  pernancy  of  the  profits,  cannot 
be  raised  out  of  the  estate  ;  the  trust  in  the  person  is  no  objection  at  all ;  for  the  use 
respecteth  the  estate  of  inheritance,  and  not  the  person. 

Nothing  that  passes  by  way  of  extinguishment  can  be  granted  to  a  use. 
Gilb.  Law  of  Uses,  &c,  2bl. 

Neither  can  a  use  be  raised  out  of  a  power. 
Arg.  Le.  147,  pi.  205,  in  case  of  Read  v.  Nash. 

Neither  can  things  which  are  mere  rights  be  conveyed  by  way  of  use, 
as  commons,  8fc,  ways  in  gross,  for  a  man  cannot  walk  over  ground  to 
the  use  of  a  third  person. 

Sir  Wm.  Jo.  127  ;  Uilb.  Law  of  Uses,  281. 

In  case  the  plaintiff  declared  that  the  defendant,  seised  in  fee  of  the  lands 
over  which  there  was  a  way,  and  of  other  lands  by  indenture  of  bargain 
and  sale  enrolled,  conveyed  his  lands  to  J  S  in  fee,  with  a  way  over  his 
lands,  and  that  J  S  leased  the  premises  to  the  plaintiff,  and  that  the  defend- 
ant disturbed  him.     The  court  were  all  of  opinion,  that  by  this  bargain 


USES   AND   TRUSTS.  149 

(G)  The  several  Kinds  of  Uses  executed  by  the  Statute,  &c. 

and  sale  the  land  only  passed,  and  not  a  way  over  the  same,  because  no- 
thing but  the  use  passed  by  the  deed,  and  there  cannot  be  the  use  of  a 
filing  which  is  not  in  esse,  as  a  way,  common,  &c,  newly  created,  and 
until  they  are  created  no  use  can  be  raised  by  bargain  and  sale,  and, 
consequently,  nothing  passed  by  the  indenture. 
Cm.  Ja.  189,  pi.  13,  Bewdley  v.  Brookby;  ||  Jones,  127,  S.  C.|| 

A  uae  may  be  of  a  lease  or  chattel. 
And.  204,  Inglefield's  case. 

But  it  is  said,  that  the  property  of  money  cannot  be  changed  by  a  gra- 
tuitous delivery  to  a  use.     Thus, 

A  sum  of  money  was  delivered  to  J  S,  to  the  use  and  behoof  of  a  wo- 
man, to  be  delivered  to  her  at  the  day  of  her  marriage,  and  before  the 
marriage  the  bailor  revoked  it.  Two  justices  held  the  money  counter- 
mandable,  and  two  e  contra.  But  Dyer  says,  it  seems  that  the  property 
of  the  money  cannot  be  changed  by  the  words  to  the  use  and  behoof. 

Ly.  49  a,  b,  pi.  7,  &c,  Lyte  v.  Penny.  But  if  the  money  had  been  delivered  by 
way  of  consideration,  satisfaction,  or  recompense,  there  the  property  would  alter,  and 
the  bailor  could  not  countermand  it.  ■  Dyer,  loc.  citat. 

One  seised  in  fee  may  bargain  and  sell,  grant  and  demise  land  to  others 
and  their  heirs  to  the  use  of  one  for  years,  because  he  has  a  fee-simple. 
But  lessee  for  years  cannot  grant  and  sell  his  lease  to  the  use  of  one  for 
years. 

Brownl.  40. 

We  have  thus  shown  how  uses  may  be  raised  according  to  the  nature 
of  the  respective  assurances,  and  what  kind  of  property  may  be  conveyed 
by  way  of  use :  it  remains  now  therefore  more  particularly  to  inquire, 

1.  What  kind  of  uses  are  executed  by  the  statute ;  2.  What  cases  are 
out  of  the  statute. 

(G)  Of  the  Several  Kinds  of  Uses  executed  by  the  Statute,(«)  which  in  their  more 

general  Division  are  Twofold,  viz. : 

1.  Uses  in  esse.  2.   Uses  in  Possibility. 

(a)  Concerning  the  execution  of  Jointures  by  the  latter  clauses  of  the  27  H.  8,  c. 
10.     See  title  Dower  and  Jointure,  Vol.  iii. 

1.   Uses  in  esse. 

With  regard  to  uses  in  esse,  they  are  raised  either  by  transmutntion 
of  possession,  or  without  such  transmutation ;  and  the  manner  in  which 
they  are  executed  has  been  already  explained  in  treating  of  the  several 
sorts  of  conveyances  to  uses,  and  their  respective  operations.  It  remains 
therefore  to  consider  of — 

2.   Uses  in  Possibility  ;  tcherein, 
1.  Executory  Fees.  2.  Contingent  Remainders. 

1.  Of  Executory  Fees. 
Though  a  remainder  of  a  fee  cannot,  by  the  rule  of  law,  be  limited  after 
a  fee-simple,  yet  that  rule  hath  of  late  been  evaded  by  distinguishing  be- 
tween an  absolute  fee-simple  and  a  fee-simple  which  depends  on  a  con- 
tingency ;  and  how  such  executory  fees  may  be  limited,  is  here  to  be  con- 
sidered ;  and  they  are  to  be  governed  by  the  following  rules : 

See  ante;  letter  (D),  p.  127.  In  what  case  the  statute  operates  against  the  rules 
of  law. 

n2 


150  USES   AND   TRUSTS. 

(G)  The  several  Kinds  of  Uses  executed  by  the  Statute,  &c. 

1st,  That  all  limitations  that  tend  to  the  provision  of  the  family,  and 
to  secure  against  contingencies  which  are  within  the  party's  own  imme- 
diate prospect,  are  to  be  favoured. 

Gilb.  Law  of  Uses,  118. 

2dly,  All  limitations  that  perpetuate,  or  tend  to  perpetuity,  are  in 
themselves  void  and  repugnant  to  the  policy  of  the  law. 

And  therefore  it  is  to  be  seen  what  is  a  perpetuity. 

Gilb.  Law  of  Uses,  118. 

A  perpetuity  is  the  settlement  of  an  interest  descendible  from  heir  ts 
heir,  so  that  it  shall  not  be  in  the  power  of  him  in  whom  it  is  vested  to 
dispose  of  it,  or  turn  it  out  of  the  channel. 

Case  of  Perpet.  31 ;  1  Rep.  138.  ||  A  perpetuity  may  at  this  day  be  described  to  be 
such  a  limitation  of  property  as  renders  it  unalienable  beyond  the  period  allowed  by 
law ;  that  is,  beyond  a  life  or  lives  in  being,  and  twenty-one  years  after,  and  a  few 
months  allowed  for  gestation.    Gilbert  by  Sugden,  260  ;  and  see  Sand,  on  Uses,  196.  || 

The  inconveniences  of  which  are,  that  the  estate  is  made  incapable  of 
answering  the  ends  for  which  the  perpetuity  is  maintained  and  established ; 
for  it  puts  it  out  of  the  power  of  the  owner  to  provide  for  the  necessities 
of  his  family,  or  the  extremity  and  various  changes  of  his  own  affairs  out 
of  the  estate ;  besides,  it  would  be  of  universal  damage  to  the  common- 
wealth ;  for  it  would  shut  up  all  converse,  by  making  the  way  of  commu- 
nication between  land  and  money  utterly  impracticable.  To  know,  there- 
fore, how  far  a  limitation  may  be  allowed,  without  the  danger  of  being 
construed  a  perpetuity,  it  is  to  be  considered  what  limitations  are  consist- 
ent with  the  rules  of  reason  and  policy. 
Cas.  of  Perpet.  31 ;  1  Rep.  138. 

1st,  The  law  in  all  cases  allows  the  limitations  of  estates  for  life,  U 
persons  in  being ;  for  there  can  be  no  danger  in  such  a  common  limita- 
tion, nor  any  design  to  perpetuate ;  and  therefore  here  the  party  is  re- 
strained from  alienation  farther  than  for  his  own  life. 

Gilb.  Law  of  Uses,  119. 

2dly,  The  law  allows  of  no  estate  of  inheritance,  that  goes  in  lineal 
succession,  but  what  is  under  the  power  of  that  person  to  whose  repre- 
sentatives the  estate  must  descend ;  and  to  establish  a  right  of  succession, 
and  to  restrain  the  power  of  alienation,  is  to  perpetuate ;  and  therefore 
to  limit  an  estate  of  succession,  determinable  upon  a  remote  contingency, 
tends  to  a  perpetuity  ;  since  none  can  purchase,  with  security,  while  such 
a  cloud  hangs  over  the  estate. 

Gilb.  Law  of  Uses,  120.  ||  It  is  a  settled  rule,  that  no  executory  foes  or  springing 
uses  can  be  valid  if  limited,  so  as  by  possibility  to  take  effect  at  a  more  remote  period 
than  a  life  or  lives  in  being  and  twenty-one  years  afterwards,  and  a  few  months  al- 
lowed for  the  gestation  of  a  child  in  the  womb ;  a  limit  which  appears  gradually  to 
have  become  fixed  by  analogy  to  the  period  during  which  an  estate  may  at  common 
law  be  prevented  from  being  aliened,  by  an  entail.  Stephens  v.  Stephens,  For.  232, 
reported  by  name  of  Steavens  v.  Steavens  ;  Vivian's  MS.  Rep.  Line.  Inn,  Lib.  Vol.  ii. 
'  p.  1 ;  Fearne's  Ex.  Dev.  430,  (7th  edit.)  Whether,  in  addition  to  lives  in  being,  the 
estate  may,  by  an  executory  devise  or  a  springing  use,  be  prevented  vesting  during  a 
term  of  twenty-one  years  in  gross,  independent  of  the  infancy  of  the  devisee,  does  not 
appear  to  be  settled.  Sir  E.  Sugden  is  of  opinion  that  it  cannot,  and  that  the  period 
must  be  confined  strictly  to  the  minority  of  the  party  to  take  under  the  limitation. 
Sec  his  note  to  Gilbert's  Law  of  Uses,  p.  260,  and  cases  there  collected.  Mr.  San- 
ders considers  the  contrary  rule  to  be  at  least  settled  in  practice.  Sand,  on  Uses, 
198.  And  in  Beard  v.  Westcott,  5  Taunt.  39:',,, the  Court  of  Common  Pleas  seem  to 
have  held  accordingly.     In  the  same  case  in  B.  R.,  5  Barn.  &  Aid.  801,  the  point  was 


USES  AND  TRUSTS.  151 

(G)  The  several  Kinds  of  Uses  executed  by  the  Statute,  &c. 

discussed,  but  not  decided  ;  and  see  1  Turn.  R.  25,  S.  C.  ;  Burton's  Law  of  Real  Pro- 
perty, p.  251.  It  is  to  be  lamented  that  the  value  of  the  judgments  on  the  important 
cases  sent  from  Chancery,  is  much  diminished  by  the  court's  habit  of  not  pronounc- 
ing judgment  at  length,  or  giving  any  reasons  in  the  certificate.  || 

Before  we  proceed  to  the  application  of  these  principles,  it  is  necessary 
to  observe,  that 

As  to  executory  fees,  there  is  a  difference,  where  they  rise  by  way  of 
use,  and  where  by  way  of  devise. 

1st,  If  they  rise  by  way  of  use,  there  must  be  a  seisin  in  somebody  to 
be  executed  in  the  grantee  of  the  contingent  use,  whensoever  the  contin- 
gency happens ;  for  if  there  be  not  a  person  that  can  be  seised  of  a  use, 
there  can  be  no  use  ;  and,  consequently,  there  can  be  no  execution  of  it : 
therefore  if  a  man  covenants  to  stand  seised  to  the  use  of  himself  in  fee, 
till  such  a  marriage  takes  effect,  and  then  to  the  use  of  himself  for  life, 
the  remainder  to  his  wife,  his  son,  &c,  and  before  the  marriage  he  makes 
a  feoffment  in  fee,  gift  in  tail,  or  lease  for  life,  upon  good  consideration, 
without  notice  of  the  uses,  the  estates  limited  after  the  marriage  shall 
never  arise  ;  because  there  is  nobody  seised  to  such  uses.  And  the  same 
law  is  of  feoffments  to  such  contingent  uses. (a) 

Cro.  Eliz.  765,  Wood  v.  Reignold  ;  Moor,  731,  Strangway  v.  Newton.  \\(a)  Sir  E. 
Sugden  thinks  that  such  uses  cannot  be  barred,  at  least  where  they  are  limited  by  a 
conveyance  operating  by  transmutation  of  possession,  and  he  cites  a  MS.  of  Serjeant 
Hill  to  the  same  effect.     Gilbert's  Law  of  Uses,  by  Sugden,  288.|| 

But  if  in  this  case  he  had  made  a  lease  for  years,  he  would  not  have 
destroyed  the  future  use,  but  only  have  bound  it;  because  there  is  a  seisin, 
out  of  which  the  use  arises ;  and  at  common  law,  if  the  feoffees  had  made 
a  lease  upon  good  consideration,  as  in  this  case,  it  would  have  bound  the 
lands,  and  consequently  cestui  que  use  must  have  the  profits  of  the  land 
thus  leased ;  and  in  this  case,  since  the  statute,  the  covenantor  has  the  same 
power  of  obliging  the  fee ;  and  therefore  those  to  whom  the  contingent 
estates  are  limited  must  take  it  under  the  charge.(6) 

Cro.  Ja.  168,  Bould  v.  Winston.  ||(6)  Serj.  Hill  says,  that  if  the  conveyance  is  a 
conveyance  to  uses,  and  not  a  covenant  to  stand  seised,  there  seems  no  legal  principle 
to  warrant  saying  that  a  lease  by  him  who  has  a  qualified  use  or  base  fee,  should  bind 
the  future  use.     Note  Gilb.  Law  of  Uses,  289.|| 

So  in  case  of  feoffment  to  the  use  of  A  in  fee,  and  if  B  pays  so  much, 
&c,  then  to  B  in  fee ;  if  A  devises  his  land  and  dies,  it  destroys  the  con- 
tingent estate  :  otherwise  it  is,  if  he  had  devised  portions  out  of  the  land, 
for  that  would  not  alter  the  freehold. 

Moor,  733,  Strangway  v.  Newton,  Gilb.  Law  of  Uses,  126. 

A  recovery  doth  not  bar  an  executory  fee ;  for  the  recoveror,  with  no- 
tice, and  without  consideration,  is  seised  to  the  former  uses. 

Cro.  Ja.  592,  593,  Pells  v.  Brown.  ||By  three  judges  against  Dodderidge,  J.  The 
reasons  stated  in  the  text  seem  immaterial.  The  ground  of  the  decision  was,  that  he 
who  suffered  the  recovery  had  a  fee,  and  the  other  had  but  a  possibility  which  could 
not  be  touched  by  the  recovery.  || 

Secondly,  With  regard  to  executory  devises. 

They  have  been  already  treated  of  under  title  "  Devise  ;"(c?)  yet  it 
may  not  be  improper  to  take  notice  of  some  circumstances  more  particu- 
larly applicable  to  the  title  under  consideration. 

(c)  See  title  Devises,  letters  (I)  and  (K),  and  Remainder,  letter  (D). 

If  a  man  devise  lands  to  A  in  fee,  and  upon  contingency  to  B  in  fee, 


152  USES  AND  TRUSTS. 

(G)  The  several  Kinds  of  Uses  executed  by  the  Statute,  &c. 

and  A  makes  a  feoffment  in  fee,  this  cloth  not  destroy  the  contingency; 
for  by  a  devise  the  freehold  itself  is  transferred,  and  there  needs  no  per- 
son to  be  seised  to  execute  an  estate  in  the  devisee,  as  must  be  where  a 
feoffment  is  made  to  executory  uses. 
Gilb.  Law  of  Uses,  127. 

But  if  a  man  devise  to  A  for  life,  with  a  contingent  remainder,  if  A 

makes  a  feoffment  in  fee,  this  destroys  the  contingent  remainder,  because 

there  is  no  particular  estate  to  support  it. 

Gilb.  Law  of  Uses,  127.  AVith  regard  to  executory  devises  of  fee-simple  in  con- 
tingency, after  an  absolute  fee,  they  stand  upon  the  reason  of  the  old  law,  which  ad- 
mits favourable  distinctions  to  supply  the  intent  of  the  testator,  that  being  always  to 
be  observed  in  wills  ;  and  where  there  is  such  an  executory  devise,  there  needs  not 
any  particular  estate  to  support  it,  because  the  testator  did  not  part  with  his  whole 
estate  in  the  first  limitation,  for  something  still  remained  in  him  to  give,  which  ac- 
cordingly he  gave  to  another,  but  upon  a  contingency  which  might  happen  upon  the 
first  limitation ;  therefore,  because  the  person  who  is  to  take  upon  him  such  a  con- 
tingency, hath  not  a  present,  but  a  future  interest,  his  estate  cannot  be  barred  by  a 
common  recovery ;  and  that  which  remained  in  the  testator  to  give,  after  the  first  fee 
thus  limitod  upon  a  contingency,  shall  descend  after  his  death  to  his  heir,  till  the 
contingency  happens.     2  Nels.  Abr.  797. 

It  remains  now  to  apply  the  principles  above  laid  down. 

1.  With  regard  to  FreeJiolds. 
The  first  remainder  which  was  allowed  to  be  good  by  a  devise,  after  a 
conditional  fee-simple,  limited  before  in  the  same  will,  was  anno  20  Eliz., 
where  the  devise  was  to  the  son  and  his  heirs,  and  if  he  die  before  twenty- 
four,  and  without  heirs  of  his  body,  remainder  over  :  now  this  was  a  plain 
remainder  limited  after  a  fee-simple  to  the  son,  but  not  upon  his  dying 
without  heirs  of  his  body  generally,  for  that  had  been  too  remote  an  ex- 
pectancy ;  but  it  was  upon  his  dying  without  heirs  of  his  body  before  he 
was  twenty-four  years  old ;  so  that  it  being  a  remainder  to  arise  upon  a 
contingency,  which  might  happen  in  a  few  years,  it  was  adjudged  good ; 
but  the  son  living  many  years  after  he  was  twenty-four  years  old,  this 
contingency  never  happened ;  and  therefore  it  was  adjudged  he  had  an 
estate  in  fee,  and  not  in  tail. 
3  Leon.  64 ;  Hind  v.  Lyons,  Dyer,  124,  pi.  38. 

But  there  can  be  no  executory  devise  of  a  fee-simple,  after  an  estate- 
tail  ;  because  that  would  tend  to  a  perpetuity ;  therefore  the  first  limitation 
must  always  be  in  fee  ;  as,  for  instance,  the  father  having  two  daughters, 
devised  a  house  to  the  eldest  and  her  heirs,  and  another  house  to  the 
youngest  and  her  heirs,  and  if  the  youngest  died  before  she  was  sixteen, 
living  the  eldest,  then  the  house  to  the  eldest  and  her  heirs ;  and  if  both 
his  daughters  died  without  issue,  then  both  the  houses  to  his  grand-daugh- 
ters and  their  heirs.  Adjudged,  that  this  last  clause,  viz.,  if  both  his 
daughters  died  without  issue,  did  not  make  cross  remainders  to  them  in 
tail  by  implication  ;  but  that  each  of  them  had  a  fee-simple  conditionally, 
immediately,  viz.,  the  eldest  if  she  survived,  her  sister  dying  before  she 
was  sixteen,  and  the  youngest,  if  she  outlived  that  age  ;  that  the  estate-tail 
was  not  vested  in  the  eldest  but  upon  a  contingency,  viz.,  if  the  youngest 
daughter  had  died  before  she  was  sixteen,  which  contingency  never  hap- 
pened, because  the  youngest  daughter  outlived  that  age ;  and  then  this 
case  was  no  more  than  a  devise  of  a  house  to  the  youngest  daughter  and 
her  heirs ;  and  if  she  die  before  she  was  sixteen,  living  the  eldest,  then  to 


USES  AND   TRUSTS.  153 

(G)  The  several  Kinds  of  Uses  executed  by  the  Statute,  &c. 

her  and  her  heirs  ;  which  is  a  remainder  in  fee  limited,  after  a  conditional 
fee  ;  and  good  by  way  of  executory  devise. 
Dyer,  330,  pi.  20;  2  Nels.  Abr.  797. 

Nevertheless,  we  meet  with  some  contrary  resolutions  as  to  this  point, 
till  at  length  the  law  seems  to  have  been  settled  by  the  following  case, 
viz. :  the  father  devised  his  lands  to  his  youngest  son  and  his  heirs  ;  and 
if  he  died  without  issue,  living  the  eldest,  then  to  him  and  his  heirs ; 
afterwards  the  youngest  son,  imagining  he  had  an  estate-tail  by  these, 
words,  "if  he  died  without  issue,"  suffered  a  common  recovery,  and  sold 
the  lands,  and  died  without  issue,  his  eldest  brother  being  still  living ; 
and  the  question  was,  whether  he  had  a  good  title  or  not  against  the  pur- 
chaser? It  was  adjudged  for  him,  that  he  had  a  good  title,  because  the 
youngest  son  had  neither  an  estate-tail,  nor  an  absolute  fee-simple,  but  a 
conditional  fee  ;  for  the  devise  to  him  and  his  heirs,  and  if  he  die  without 
issue,  is  not  absolute  and  indefinite,  but  it  is  tied  up  to  a  contingency  of 
his  dying  whilst  his  eldest  brother  was  living ;  now  he  being  living  when 
the  youngest  brother  died,  the  fee-simple  determined  by  his  death  with- 
out issue,  and  immediately  arose  in  the  eldest  brother,  who  had  the  re- 
mainder in  fee,  depending  upon  the  possibility  that  he  might  be  alive 
when  his' youngest  brother  died  without  issue,  which  remainder  did  not 
depend  upon  any  particular  limitation,  but  upon  a  collateral  determination 
of  the  estate  of  the  youngest  son  dying  without  issue  whilst  he  was  living ; 
and  because  it  was  a  remainder  not  in  being  when  the  recovery  was  suf- 
fered, nor  until  the  said  contingency  did  happen,  therefore  it  could  not 
be  barred  by  that  recovery. 

Godb.  282,  Pells  v.  Brown  ;  Cro.  Ja.  590,  S.  C.  But  if  an  estate  be  limited  to  J  S, 
in  fee,  while  J  N  hath  issue,  remainder  to  J  D,  this  is  void  to  J  D,  for  this  comes  within 
the  danger  of  a  perpetuity,  and  doth  not  determine  within  the  common  compass  of  an 
estate  for  life.    Vaugh.  272,  Gardner  v.  Sheldon. 

So,  where  there  was  a  devise  to  T  P  and  his  heirs,  and  if  he  die  with- 
out issue,  living  W  C,  or  if  he  die  before  he  is  of  the  age  of  twenty-one 
years,  remainder  over  to  another  in  fee ;  it  was  adjudged,  that  this  was 
a  conditional  fee  in  T  P  immediately,  and  that  the  words  "if  he  die  with- 
out issue"  make  an  estate-tail  if  he  had  gone  no  farther;  but  it  is  dying 
without  issue,  living  W  0,  so  that  though  it  was  an  estate-tail,  it  was  not 
to  vest  in  T  P  but  upon  that  contingency ;  so  that  there  is  a  plain  differ- 
ence, where  the  limitation  is  upon  a  dying  without  issue  generally,  and 
a  dying  without  issue  in  the  lifetime  of  another  ;  for  in  the  first  case  there 
can  be  no  executory  devise  after  an  estate-tail,  because  that  would  tend 
to  a  perpetuity ;  for  that  contingency  is  too  remote,  where  a  man  must 
expect  a  fee  upon  another's  dying  without  issue  generally ;  but  dying 
without  issue  living  another,  may  happen  in  a  little  time,  because  it  de- 
pends but  upon  one  life ;  and  therefore  a  devise  of  a  fee-simple  to  one, 
but  to  remain  to  another  upon  such  a  contingency,  is  now  held  good  by 
way  of  executory  devise  ;  but  not  upon  a  dying  without  issue  generally  ; 
as  for  instance,  the  father  devised  lands  to  his  eldest  son  and  his  heirs, 
and  other  lands  to  his  youngest  son  and  his  heirs ;  and  that  if  either  of 
them  died  without  issue,  the  survivor  should  be  heir  to  the  other :  ad- 
judged, this  was  an  estate-tail  in  them,  because  it  is  limited  to  them  upon 
their  dying  without  issue  generally. 

Nels.  Abr.  798  ;  Cro.  Ja.  G95,  Chadock  v.  Cowley. 

||The  difficulty  in  most  cases  of  this  sort  is,  to  ascertain  from  the  whole 
Vol.  X.— 20 


154  USES   AND  TRUSTS. 

(G)  The  several  Kinds  of  Uses  executed  by  the  Statute,  &c. 

context  of  the  will,  whether  the  gift  over  is  generally  upon  failure  of  heirs, 
which  is  void,  unless  where  the  preceding  estate  can  be  cut  down  to  an 
estate-tail ;  Wood  v.  Baron,  1  East,  259  ;  Doe  v.  Ellis,  9  East  R.  382 ; 
or  whether  it  is  confined  to  a  failure  of  heirs  within  the  period  allowed 
by  law,  in  which  case  it  is  good. 

Where  the  devise  over  was  "in  case  the  first  devisee  should  happen 
to  die  leaving  no  issue  behind  him,"  the  two  last  words  were  held  to  tie 
up  the  event  to  the  time  of  the  devisee's  death ;  and,  consequently,  the 
devise  was  held  good. 

Porter  v.  Bradley,  3  Term  R.  143. 

So,  also,  where  the  devise  was  to  A  and  his  heirs  for  ever,  and  in  case 
he  should  depart  this  life,  and  leave  no  issue,  then  over  :  this  was  held  a 
good  devise,  since  the  words  implied  a  dying  without  issue  at  the  time  of 
the  death  of  the  first  devisee. 

Roe  v.  Jeffery,  7  Term  R.  589. 

So,  where  the  bequest  of  a  term  was  to  A  and  the  heirs  of  his  body, 
and  to  their  heirs  and  assigns  for  ever,  but  in  default  of  such  issue,  then 
after  his  decease  to  B  and  his  heirs,  the  limitation  over  to  B  was  held 
good  by  way  of  executory  devise. 
=  Wilkinson  v.  South,  7  Term  R.  555  ;  and  see  2  Bos.  &  Pul.  324 ;  2  Marsh.  R.  161. 

So,  where  there  was  a  devise  to  A  B,  her  heirs,  &c,  for  ever ;  and  in 
case  A  B  happen  to  die  and  leave  no  child  or  children,  then  to  C  D  and 
her  heirs  for  ever,  paying  the  sum  of  1000Z.  to  the  executors  of  A  B,  or 
to  such  persons  as  A  B  should  by  will  appoint ;  it  was  held  that  the  de- 
vise over  to  CD  was  a  good  executory  devise,  in  case  A  B  died  leaving 
no  issue  living  at  her  death,  the  payment  of  the  1000/.  to  the  executor 
of  A  B,  being  considered  to  indicate  that  the  estate  was  meant  to  go  over 
on  failure  of  children  at  A  B's  death,  and  not  on  the  remote  event  of  an 
indefinite  failure  of  issue. 

Doe  v.  Webber,  1  Barn.  &  Aid.  713. 

So,  where  a  testator  having  a  son  and  daughter,  and  the  latter  having 
several  children,  devised  to  his  son  W  F  in  fee,  and  if  he  should  leave  no 
children,  child,  or  issue,  the  estate  was,  on  the  decease  of  W  F,  to  become 
the  property  of  the  heir  at  law,  subject  to  such  legacies  as  W  F  might 
leave  to  the  younger  branches  of  the  family  ;  it  was  held,  that  W  F  took 
an  estate  in  fee  with  an  executory  devise  over  to  the  person  who  should 
be  heir  at  law  on  the  death  of  W  F  without  leaving  any  issue. 

Doe  v.  Frost,  3  Barn.  &  A.  546  ;  and  see  4  Maule  &  S.  61. 

The  words  "leaving  no  issue,"  when  standing  alone,  and  not  explained 
by  any  words  in  the  context  of  the  will,  are  held  to  mean  indefinite  failure 
of  issue,  when  applied  to  a  freehold  estate  ;  but  in  case  of  a  bequest  of  a 
chattel  interest,  these  words  are  considered  as  referring  to  a  failure  of 
issue  at  the  death  of  the  party ;  the  reason  of  the  difference  being,  that 
in  the  former  case  the  courts  lean  in  favour  of  the  heir  at  law,  whose  in- 
•fp-pncf"  ic  concerned. 

Forth  v  Chapman,  1  P.  Wil.  664  ;  Porter  v.  Bradley,  3  Term  R.  143 ;  Daintry  v. 
Daintry,  6  Term  11.  307 ;  Crooke  v.  De  Vandes,  9  Ves.  197 ;  Fearne  Ex.  Dev.  471, 
477,  (7th  edit. )|| 

2.   With  respect  to  Chattels. 

Not  long  after  a  fee-simple  was  adjudged  to  arise  to  one,  after  a  contin- 
gent fee  limited  to  another,  it  became  a  question,  whether  a  term  for  years 


USES  AND  TRUSTS.  155 

(G)  The  several  Kinds  of  Uses  executed  by  the  Statute,  &c. 

might  be  limited  in  the  same  manner ;  and  it  was  objected  that  it  could 
not,  because  it  being  no  more  than  a  chattel,  it  was  so  poor  and  mean  an 
interest,  that  it  could  not  be  limited  over  in  remainder ;  for  by  the  rules 
of  law,  the  devise  of  a  chattel  for  an  hour,  is  a  devise  of  it  for  ever.  No*w 
in  answer  to  the  poverty  and  meanness  of  a  chattel  interest,  it  is  certain, 
there  is  no  material  difference  between  it  and  an  inheritance,  in  respect 
to  the  owner  of  the  lands  himself,  but  only  in  respect  of  the  duration  of 
his  estate  ;  for  the  proprietor  of  a  lease  for  years  hath  as  absolute  a  power 
over  it,  as  the  owner  of  an  inheritance  hath  over  that  estate,  and  since  great 
part  of  the  lands  in  this  nation  is  held  under  leases,  it  seems  very  absurd, 
for  any  one  to  affirm  that  such  lessees  cannot  provide  for  the  contingen- 
cies of  their  families,  because  their  estates  and  interest  in  such  lands  are 
accounted  poor  and  mean  in  law,  being  compared  to  those  who  held  in 
fee-simple  absolutely. 

2  Nels.  Abr.  801 ;  Ld.  Not.  Arg.  Cas.  of  Perp.  32,  33. 

It  is  true,  this  reason  hath  prevailed  ;  for  formerly,  wherever  there  was 
a  devise  of  a  term  of  years  to  one,  and  that  if  he  die,  living  another  per- 
son, (particularly  named  in  the  will,)  that  it  should  remain  to  the  other 
person,  during  the  residue  of  the  term,  such  a  remainder  was  held  void. 
Dyer,  74,  pi.  18. 

But  about  the  beginning  of  the  reign  of  Queen  Elizabeth,  the  judges 
were  of  another  opinion ;  for  there  being  a  devise  of  a  term  for  years  to 
one  for  so  long  a  time  as  he  should  live,  remainder  over  to  another ;  this 
was  adjudged  good.  At  length  it  was  adjudged,  that  a  remainder  of  a 
term  to  one,  after  it  was  limited  to  another  for  life,  was  good,  viz.,  the 
testator  being  possessed  of  a  term  for  sixty  years  devised,  that  his  wife 
should  have  all  his  lands  in  lease  for  so  many  years  as  she  should  live,  and 
that  after  her  death,  the  residue  thereof  should  be  to  his  son  and  his  as- 
signs, and  made  her  sole  executrix,  and  died:  this  remainder  was  adjudged 
good  upon  this  distinction,  viz.,  that  there  was  jus  possessionis  and  jus 
proprietatis  of  a  term  for  years ;  that  it  might  be  collected  out  of  the 
words  of  this  will,  that  the  testator  did  not  intend  the  absolute  property 
of  it  to  his  wife,*  but  only  the  possession  for  so  many  years  as  she  should 
live,  though  it  is  true  there  was  a  possibility  she  might  survive  the  whole 
term,  but  that  it  is  plain  he  intended  the  right  and  property  of  the  resi- 
due of  the  term  to  his  son.  And  this  my  Lord  Nottingham  tells  us,  in 
the  Duke  of  Norfolk's  case,  was  the  first  time  that  an  executory  remain- 
der of  a  term  for  years  was  adjudged  good. 

Dyer,  277,  pl/59 ;  Dyer,  358,  pi.  50;  4  Leon.  192;  Ld.  Not.  Arg.  Cas.  of  Perp.  33. 

Afterwards  some  distinctions  were  made,  where  the  devise  was  of  the 
occupation  and  profits  of  the  land,  &c,  in  lease,  and  where  the  devise  was 
of  the  lease  or  term  itself;  but  these  distinctions  were  set  aside  in  the  fol- 
lowing case.  Where  a  lessee  for  years  of  a  farm  devised  the  use  and  oc- 
cupation thereof  to  his  wife  for  life,  and  after  her  decease  to  his  son 
Matthew  Manning,  for  the  residue  of  the  term,  and  made  her  sole  execu- 
trix, and  died :  it  is  true  one  judge  was  of  opinion,  that  the  residue  of  the 
term  thus  devised  to  the  son  was  void,  because  his  mother  had  the  whole 
by  the  devise  to  her  for  life,  and  there  being  only  a  possibility  that  she 
might  die  before  the  term  expired,  the  residue  could  not  be  devised  over 
to  another,  to  vest  in  him  upon  such  a  possibility;  but  adjudged,  that 
Matthew  Manning  the  son  did  not  take  this  term  by  way  of  remainder, 


156  USES  AND  TRUSTS. 

(G)  The  several  Kinds  of  Uses  executed  by  the  Statute,  &c. 

but  by  way  of  an  executory  devise  to  hirn,  viz.,  upon  the  contingency  of  bis 
mother's  death  within  the  term :  and  that  there  was  no  difference  where 
the  devise  is  of  the  lease  itself,  or  of  the  land,  or  farm  in  lease,  or  of  the 
use,  occupation,  or  profits  of  the  land,  for  the  law  will  make  such  con- 
struction of  those  words,  as  may  consist  with  the  intent  of  the  testator. 

8  Rep.  94,  Matthew  Manning's  case.  But  a  grant  of  the  lease  for  years  to  J  S  for 
life,  remainder  to  J  N,  is  not  good  to  J  N,  for  leases  for  years  being  under  the  power 
of  the  freeholder,  they  are  recovered  as  chattels,  and  go  to  the  executors  ;  and  a  chattel 
cannot  be  limited  for  life  with  a  remainder  over ;  because  this  would  create  great  in- 
security in  common  traffic.  Gilb.  Law  of  Uses,  121.  ||But  they  may  at  this  day,  by 
deed  of  trust,  be  as  effectually  settled  to  one  for  life,  with  remainder  over,  as  an  estate 
of  inheritance,  if  it  is  not  attempted  to  render  them  unalienable  beyond  the  period 
allowed  by  law.     Iiarg.  Co.  Lit.  20  a,  note.|| 

The  law  seems  to  be  now  settled,  that  executory  devises  are  good,  pro- 
vided the  contingency  is  to  happen  within  a  life,  or  several  lives,(a)  so  that 
they  are  all  in  being ;  for  there  can  be  no  tendency  to  a  perpetuity,  which 
was  one  great  mischief  apprehended  from  those  kinds  of  limitations. 

1  Vol.  Cas.  in  Eq.  Ab.  191.  (a)  If  there  are  ever  so  many  lives,  there  must  be  a 
survivor,  so  that  in  effect  it  is  but  the  length  of  one  life.  2  Vol.  Cas.  in  Eq.  Abr.  337 ; 
|| Woodford  v.  Thellusson,  1  New  R.  357.  || 

As  the  legal  estate  of  a  term  may  be  devised,  so  the  trust  of  a  term 
may  be  limited ;  the  trust  of  a  term  in  equity  being  governed  by  the 
same  rules  which  govern  the  devise  of  a  term  at  law. 
,    Gilb.  Law  of  Uses,  124;  1  Vern.  235,  Massenburgh  v.  Ash. 

A  limitation  of  a  term  to  years  for  twenty  distinct  persons  in  esse  is 
good,(6)  as  has  been  said ;  but  the  limitation  of  a  term  to  A  for  life,  the 
remainder  to  the  right  heirs  of  B,  a  person  in  esse,  is  a  void  remainder ; 
and  after  the  death  of  A  it  shall  revert  to  the  donor ;  because  this  might 
tend  to  the  establishment  of  an  estate  of  inheritance  in  a  chattel,  and 
putting  it  out  of  the  course  the  law  had  settled  for  it,  whereby  it  ought 
to  go  to  the  personal  representative. 

Gilb.  Law  of  Uses,  124;  Chan.  Cas.  8,  Goring  v.  Bickerstaff.  \\(b)  It  seems  now 
Bettled  that  whatever  number  of  limitations  there  may  be  after  the  first  executory  de- 
vise of  the  whole  interest,  any  one  of  them  which  is  so  limited  that  it  must  take  effect 
if  at  all  within  twenty-one  years  after  the  period  of  a  life  then  in  being,  maybe  good 
in  event,  if  no  one  of  the  preceding  executory  limitations,  which  would  carry  the 
whole  interest,  happens  to  vest.  But  where  once  any  preceding  executory  limitation, 
which  carries  the  whole  interest,  happens  to  take  place,  that  instant  all  the  subse- 
quent limitations  become  void,  and  the  whole  interest  is  then  become  vested.  See 
Fearne's  Ex.  Dev.  p.  415  ;  Gilb.  by  Sugden,  p.  282,  and  cases  there  cited.  || 

So,  if  a  term  be  limited  to  A  for  life,  the  remainder  is  in  the  donor; 
and  if  a  term  be  limited  to  A  for  life,  the  remainder  to  the  right  heirs 
of  the  donor,  this  is  a  void  limitation,  because  the  reversion  is  in  him. 
Gilb.  Law  of  Uses,  124. 

But,  if  the  trust  of  a  term  be  limited  to  A  for  life,  the  remainder  to  B, 
B  may  dispose  of  the  remainder ;  yet,  if  a  term  be  devised  to  A  for  life, 
the  remainder  to  B,  B  cannot  dispose  of  this  remainder ;  for  by  the  rules 
of  the  common  law,  a  possibility  cannot  be  granted  over,  for  a  man  that 
only  may  have  a  right,  has  at  present  no  right  in  him  ;  and  while  the  rules 
of  law  say  he  has  no  right,  it  is  contradictory  and  repugnant  to  allow  him 
to  act  as  a  person  having  right,  by  transferring  an  interest  to  another.  B, 
in  this  case,  has  only  a  possibility  to  have  a  right,  because  the  estate  of  A, 
being  of  uncertain  duration,  may  outlast  the  term  for  years  ;  but  in  Chan- 
cery, where  the  trust  is  examined,  they  allow  a  man  to  provide  for  his  pre- 


USES  AND  TRUSTS.  157 

(G)  The  several  Kinds  of  Uses  executed  by  the  Statute,  &c. 

sent  occasions  out  of  what  he  may  possibly  have ;  and  a  purchaser  of  it 
shall  not  lose  the  probable  advantage,  since  he  hath  given  for  it  a  valu- 
able consideration. 

Gilb.  Law  of  Uses,  124 ;  4  Rep.  66,  Fulwood's  case. 

2.  Of  contingent  Remainders. 

The  law  respecting  this  title  has,  in  part,  been  already  explained ;(«) 
it  may  be  necessary,  however,  more  particularly  to  consider, 
(a)  See  title  Remainder,  letter  (D),  et  sequent. 

1.  In  what  Manner  they  are  to  be  executed. 

If  a  feoffment  be  made  to  J  S  in  fee,  to  the  use  of  A  for  life,  remainder 
to  his  first,  second,  and  third  son,  the  remainder  to  B  in  fee,  from  these 
limitations  the  three  following  observations  may  be  drawn : 

Gilb.  Law  of  Uses,  127. 

1st,  That  there  ought  to  be  a  person  seised  to  the  use  at  the  time  when 
the  use  is  executed ;  and  this  is  plain  by  the  words  of  the  statute,  viz., 
if  any  person  stand  or  be  seised. 

1  Rep.  126,  a,  Chudleigh's  case.  ||  Anderson's  report  of  this  case  seems  the  best ; 
and  see  an  abstract  of  a  translation  of  it,  Sugden's  Gilbert  on  Uses,  App. ;  and  see  the 
notes  to  the  case  in  1  Rep.  (Ed.  Thomas  and  Fraser.)|| 

2dly,  That  the  estate  for  life  is  immediately  executed  in  A  with  the 
remainder  in  fee  to  B  by  the  statute ;  because  the  use  is  immediately  in 
them,  and  they  have  the  possession  in  the  same  manner  they  have  the  use. 

Poph.  74. 

3dly,  That  no  possession  can  be  immediately  executed  in  the  sons,  be- 
canse  they  are  not  in  being:  and  therefore  capable  of  no  property, 
neither  in  use  nor  possession. 

1  Rep.  126  a ;  Poph.  72 ;  1  Rep.  136  a. 

The  inattention  to  these  particulars  caused  two  false  opinions  in  this 
matter  in  the  debate  of  Chudley's  case. 

1st,  Some  thought,  according  to  the  second  rule,  that  the  whole  pos- 
session must  be  'executed  in  A  and  B,  and  therefore  the  contingent  use, 
when  it  falls,  was  executed  out  of  the  first  livery ;  and  the  estate  formerly 
in  the  feoffees;  and  this  by  the  words  of  the  statute  declaring  that  the 
estate  that  was  in  the  feoffee  shall  be  in  cestui  que  use  ;  and  hence  they 
inferred,  that  since  the  estate  was  executed  by  the  power  of  the  statute, 
it  must  be  preserved  till  such  execution  by  the  same  power ;  and  there- 
fore they  said,  the  contingent  remainders  were  in  abeyance,  and  not  ex- 
tinguishable  by  the  alienation  of  tenant  for  life. 

Poph.  73  ;  1  Rep.  132,  133,  134. 

But  this  is  a  mistake ;  first,  because  this  is  contrary  to  the  first  rule ; 
for  that  supposes  an  estate  in  J  S  at  the  time  of  the  execution. 
,       1  Rep.  136  a ;  1  And.  332. 

2dly,  Because  it  is  contrary  to  the  nature  of  an  abeyance  by  the  rules 
of  law ;  for  if  there  be  tenant  for  life,  remainder  to  the  right  heirs  of  J 
S  living,  if  tenant  for  life  dies,  or  aliens,  during  the  life  of  J  S,  the  re- 
mainder is  destroyed. 

1  Rep.  135. 

3dly,  Because  it  would  create  a  perpetuity. 

Gilb.  Law  of  Uses,  129. 

0 


158  USES  AND  TRUSTS. 

(G)  The  several  Kinds  of  Uses  executed  by  the  Statute,  &c. 

Some  add  another  consequence  of  this  doctrine,  that  a  use  would  rise 
out  of  a  use. 

Gilb.  Law  of  Uses,  129. 

Others  held  a  different  opinion  ;  and  they  thought  there  was  an  imme- 
diate remainder  vested  in  J  S  to  serve  the  contingent  use  when  it  falls, 
and  that  this  estate  was  determinable  upon  the  rising  and  execution  of 
the  estate  in  the  sons,  &c. 

Gilb.  Law  of  Uses,  129 ;  1  Rep.  128,  129. 

But  this  could  not  be ;  first,  because  this  is  contrary  to  the  second 
rule  ;  for  thereby  an  estate  is  immediately  vested  in  A  and  B,  but  by  this 
opinion,  the  estate  in  B  is  only  executory ;  for  it  arises  to  him  upon  the 
same  contingency  that  the  estate  of  J  S  rises,  for  he  could  not  have  a 
fee  before ;  for  then  there  would  be  a  double  fee. 

Gilb.  Law  of  Uses,  129;  1  Rep.  128,  129. 

2dly,  Because  J  S  would  have  a  remainder  without  any  grantor,  and 
the  law  leaves  it  to  parties  to  limit  their  own  estates ;  and  where  nobody 
has  limited  an  estate,  there  can  be  no  legal  limitation. 

Gilb.  Law  of  Uses,  129  ;  1  Rep.  128,  129. 

Sdly,  If  a  remainder  be  vested  in  J  S  he  must  punish  waste,  and  enter 
for  a  forfeiture ;   but  the  party  designed  him  no  such  benefit,  but  made 
him  only  an  instrument  to  convey  it  to  others. 
Gilb.  Law  of  Uses,  129  ;  1  Rep.  128,  129. 

'  The  true  opinion  is,  that  the  legal  estate  is  executed  in  A  and  B,  but 

the  contingent  remainders  are  not  utterly  lost,  because  the  possession  by 

the  statute  must  be  executed  in  the  same  manner  as  the  use  is  limited ; 

therefore  there  remains  a  possibility  of  possession  by  the  feoffees,  to  this 

purpose  only,  that  when  the  contingency  happens,  then  the  possession 

may  be  transferred  to  the  remainder-man ;  and  if  this  is  an  estate  not 

known  before,  and  so  has  no  determination  at  common  law,  yet  it  is  such 

an  one  as  must  be  raised  by  the  intent  of  the  statute,  and  all  its  ends 

could  not  be  answered  without  it ;  and  therefore  to  suppose,  as  in  the  other 

opinions,  no  estate  in  the  feoffees,  or  to  reduce  it  to  the  standard  and 

rules  of  the  common  law,  is  equally  false  and  impracticable. 

Gilb.  Law  of  Uses,  130,  131.  [j  As  to  the  much  controverted  question  on  the  mode 
in  which  the  statute  executes  contingent  uses,  whether  by  means  of  a  scintilla  juris  in 
the  feoffees,  or  by  transferring  the  whole  seisin  to  the  vested  uses,  and  letting  in  the 
contingent  uses  when  they  arise,  see  Gilb.  on  Uses,  by  Sugden,  note,  p.  296  ;  Sanders 
on  Uses,  232 ;  Sugden  on  Powers,  11,  45,  where  the  cases  are  analyzed ;  Rowe's 
Scintilla  Juris,  Co.  Lit.  Butler's  note,  271  b;  Butler's  Fearne,  291.  The  question 
seems  now  unimportant  in  practice. || 

2.  How  they  may  be  defeated. 
1.  Where  there  is  no  Power  of  Revocation. 

How  they  may  be  defeated,  where  there  is  no  power  of  revocation  nas 
been  already  explained  ;(a)  it  may  not  be  improper,  however,  to  take 
notice  of  the  following  distinctions. 

(a)  See  title  Remainder,  letter  (G). 

If  a  man  covenants  for  a  good  consideration  to  stand  seised  to  the  use 
of  his  son  for  life,  the  remainder  to  such  feme  as  the  son  afterwards  shall 
take  to  wife,  for  her  life,  with  remainder  over,  and  after  the  covenantor 
makes  lease  for  years  of  the  land,  reserving  certain  rent,  and  after  the  son 


USES   AND   TRUSTS.  159 

(G)  The  several  Kinds  of  Uses  executed  by  the  Statute,  &.c. 

takes  a  wife  and  dies ;  this  lease  for  years  is  a  revocation  and  destruction 
of  the  contingent  use  for  so  much  of  the  time  as  the  lease  is  to  continue ; 
for  the  estate  of  the  land  is  disturbed  before  the  contingent  happened  ; 
but  this  is  not  any  revocation  for  more  than  the  lease,  for  the  feme  shall 
have  the  reversion,  and  the  rent  reserved  upon  the  lease. 

2  Roll.  Abr.  793,  Bould  v.  Wiston  ;  Noy,  122;  ||  Cro.  Ja.  168.  ||  Gilb.  Law  of  Uses, 
&c,  138,  cites  S.  C.  and  says,  that  this  will  not  prevent  the  raising  of  the  contine 
remainder,  nor  bind  it;  for  the  covenantor  has  no  power  to  demise  anything  but  the 
reversion,  and  consequently  the  freehold  remains  unaltered  to  support  the  contingent 
remainder.  But  he  adds,  that  if  the  covenantor  in  this  case  had  reserved  to  himself 
a  power  of  making  leases,  this  lease  would  have  been  good,  and  a  revocation  of  the 
former  uses.     ||  Vide  suprci,  Vol.  viii.  p.  357,  S.  C.|| 

If  A,  seised  in  fee,  in  consideration  of  natural  love  and  affection  to  his 

wife  and  children,  covenants  with  B  to  stand  seised  thereof  to  the  use  of 

himself  for  life,  and  after  to  the  use  of  his  wife  for  life,  and  after  to  the  use  of 

C  his  daughter  for  life,  and  after  to  the  first  son  of  the  body  of  C  begotten, 

and  so  after  to  the  other  sons  of  C  in  tail,  and  after  to  his  own  right  heirs, 

and  after  A,  by  indenture  between  him  and  F  reciting  the  said  conveyance 

and  estates,  grants  his  said  reversion  in  fee  without  any  consideration  to  F 

and  his  heirs,  to  the  use  of  F  and  his  heirs  ;  this  grant  of  the  reversion  in 

fee  to  F  is  not  any  destruction  of  the  contingent  use  limited  to  the  first 

son  of  C,  but  that  the  use  of  the  first  son  of  C  born  after  this  grant,  and  in 

the  life  of  A  or  C,  shall  arise  well  enough,  because  by  the  grant  of  F  of 

the  reversion,  the  first  uses  and  estates  being  recited  in  the  deed  of  grant, 

and  this  being  without  any  consideration,  the  grantee  shall  stand  seised 

to  the  first  uses,  inasmuch  as  he  has  conusance  of  the  first  uses;  ami 

though  he  limits  it  to  the  use  of  the  grantee  and  his  heirs,  yet  this  does 

not  alter  the  trust  any  more  now  than  at  the  common  law. 

2  Roll.  Abr.  796.  This  was  upon  a  conveyance  made  by  Sir  Edward  Coke.  2  Sid. 
64,  129,  157,  Heyns  v.  Villars.  Gilb.  Law  of  Uses,  136,  cites  S.  C.  and  says,  that 
this  doth  not  destroy  the  contingent  remainder  to  the  son  of  C  for  life,  who  had  a  right 
of  entry  for  the  forfeiture,  and  a  particular  estate  in  right,  on  which  the  contingent 
remainder  will  depend.  ||  Vide  supra,  Vol.  viii.  p.  346,  S.  C. ;  Gilb.  on  Uses,  by  Sugden, 
395,  notd. || 

But,  if  in  this  case  the  wife  had  entered  after  the  husband's  death,  this 
would  not  only  have  revived  her  estate,  but  the  estate  of  C  and  the  con- 
tingent remainder  thereon,  which  had  never  been  put  out  of  being ;  other- 
wise it  is,  as  is  said,  in  Sampson  Shelton's  case,  if  the  contingent  re- 
mainder had  depended  upon  the  estate  of  B. 

Gilb.  Law  of  Uses,  136.  ||  The  reason  of  this  is  not  very  obvious  :  the  rule  is,  that 
a  right  of  entry  to  support  a  contingent  remainder  must  be  a  present  right ;  a  mere 
future  right,  arising  at  the  same  instant  with  the  contingent  remainder,  will  not  be 
effectual.  Now  in  this  case  the  feoffment  of  the  husband  passed  his  estate  and  the 
estate  of  the  wife  during  the  coverture ;  so  that  no  right  of  entry  existed  during  the 
marriage ;  and  the  wife's  right,  which  would  not  take  effect  till  after  the  coverture, 
when  the  contingent  remainder  itself  was  to  vest,  would  not  support  it ;  and  see  Bigot 
v.  Smith,  Cro.  Car.  102;  Thompson  v.  Leach,  1  Ld.  Raym.  316;  Fearne's  C.  R.  369, 
370 ;  Gilb.  on  Uses,  by  Sugden,  309,  notd.\\ 

If  a  feme  covert  or  an  infant  be  enfeoffed  to  any  use  precedent  since 
the  statute,  the  infant  or  baron  comes  too  late  to  discharge  or  root  up  the 
feoffment ;  but,  if  an  infant  be  enfeoffed  to  the  use  of  himself  and  his 
heirs,  and  if  J  D  pay  such  a  sum  of  money  to  the  use  of  J  G  and  his 
heirs,  the  infant  may  disagree  and  overthrow  the  contingent  use. 

Lord  Bacon's  Readings  on  the  Statute  of  Uses,  348. 

But  it  is  otherwise,  if  an  infant  be  enfeoffed  to  the  use  of  himself  for 


160  USES   AND   TRUSTS. 

(G)  The  several  Kinds  of  Uses  executed  by  the  Statute,  &c. 

life,  the  remainder  to  the  use  of  J  S  and  his  heirs,  for  he  may  disagree 
to  the  feoffment  as  to  his  own  estate,  but  not  to  divest  the  remainder,  but 
it  shall  remain  to  the  benefit  of  him  in  remainder. 

Lord  Bacon's  Readings  on  the  Statute  of  Uses,  348. 

2.  "Where  there  is  an  express  Power  of  Revocation. 

A  feoffment  or  fine,  &c.,  with  power  of  revocation,  is  void  at  common 
law,  as  to  all  power  of  revocation ;  for  the  words  of  enfeoffing  or  grant- 
ing, &c.j  transfer  the  whole  right,  pr.operty,  and  power  of  disposal  to  the 
feoffee,  &c. ;  and  therefore  for  the  party  to  limit  to  himself  a  power  of 
revocation  and  disposal,  is  repugnant  to  the  force  of  the  precedent  words, 
and  would  introduce  a  double  power  seated  in  distinct  persons  over  the 
same  thing,  which  the  common  law  disallows.  But  this  rule  of  law  was 
set  aside  by  the  same  construction  that  hath  brought  in  executory  fees ; 
for  when,  before  the  statute,  uses  were  limited  with  power  to  revoke,  as 
the  occasion,  circumstances,  and  mind  of  the  party  altered,  it  was  thought 
reasonable  that  the  parties  should  have  liberty  to  revoke  according  to 
their  own  apparent  intent,  by  which  uses  are  ever  governed ;  and  since 
the  possession  is  executed  by  the  statute  as  the  party  had  the  use,  the 
estate  continues  revocable. 

1  Inst.  237  ;  Gjlb.  Law  of  Uses,  141. 

A  power  of  revocation  is  twofold : 

1.  A  power  relating  to  the  land. 

2.  A  power  simply  collateral  to  the  land. 

Hard.  415,  per  Hale,  Edwards  v.  Slater;  ||  Sugden  on  Pow.  46,  (4th  edit.)  |] 

1st,  A  power  relating  to  the  land  is,  where  a  power  is  limited  to  one 
that  had,  hath,  or  shall  have  an  estate  or  interest  in  the  land. 
This  is  again  twofold  : 

1.  Appendant  or  annexed  to  the  estate  in  the  land. 

2.  In  gross. 

Hard.  414  ;  Gilb.  Law  of  Uses,  141. 

1st,  Appendant  or  annexed  to  the  estate  in  the  land,  is,  when  a  man 
hath  an  estate  in  the  land,  and  a  power  of  revocation,  and  the  execution 
of  the  power  falls  within  the  compass  of  the  estate  in  the  lands  ;  as  if  the 
tenant  for  life  with  power  to  make  leases,  or  to  revoke,  grants  a  rent-charge, 
and  then  makes  a  lease  according  to  his  power,  the  lessee  shall  hold  it 
charged  during  the  life  of  the  tenant  for  life ;  for  he  hath  power  to  charge 
his  own  interest,  which  by  his  own  act  cannot  be  avoided. 

Hard.  414  :  Gilb.  Law  of  Uses,  141. 

And  if  in  this  case  he  covenants  to  stand  seised  to  the  use  of  a  stranger, 
he  cannot,  by  any  after  act,  revoke  the  uses ;  for  since,  as  is  said,  the 
execution  of  this  power  falls  within  the  compass  of  the  estate,  so  that, 
unless  it  be  executed  during  the  continuance  of  the  estate,  it  can  never 
be  executed ;  therefore,  whatever  act  passes  away  the  estate,  hinders  the 
execution  of  this  power  of  demising  ;  for  a  man  cannot  demise  that  estate 
which  he  hath  passed  away  to  another. 

2dly,  In  gross  is,  where  a  man  hath  an  estate  and  power  of  revocation, 
and  the  execution  of  the  power  falls  out  of  the  compass  of  the  estate ;  as, 
if  there  be  a  tenant  for  life,  remainder  in  tail,  with  a  power  lodged  in  tenant 
for  life  to  make  a  lease  for  thirty-one  years  to  commence  after  his  death,  to 


USES  AND  TRUSTS.  161 

(G)  The  several  Kinds  of  Uses  executed  by  the  Statute,  &c. 

raise  portions  to  his  daughters,  this  is  a  power  in  gross ;  and  if  tenant  for 
life  bargains  and  sells  the  lands  in  fee,  this  doth  not  destroy  the  power; 
for  since  the  execution  of  the  power  doth  not  fall  within  the  compass  of  his 
own  estate,  the  selling  of  his  own  estate  only  doth  not  hinder  the  making 
use  of  the  power. 

Hard.  414;  Gilb.  Law  of  Uses,  141. 

But,  if  he  had  levied  a  fine,  or  made  a  feoffment  in  fee,  this  power  had 
been  destroyed,  for  here  he  absolutely  passes  the  entire  estate,  and  devests 
all  the  remainders ;  and  thus,  by  passing  the  whole  estate  to  another,  and 
limiting  new  uses  to  his  own  benefit,  he  hath  destroyed  all  the  powers  of 
revocation  ;  for  this  power  cannot  be  executed  but  out  of  the  remainders ; 
and  he  hath  prevented  the  execution  of  it  by  having  already  disposed  of 
the  whole  estate  to  another. 

Hard.  416. 

He  may  likewise  release  such  a  power  of  revocation  to  the  remainder- 
man ;  for  he  that  is  to  have  an  interest  by  any  possibility  may  release  the 
same  to  the  present  possessor,  as  well  as  if  he  had  a  future  right,  for  it 
is  according  to  the  policy  of  the  law,  for  the  quiet  and  peace  of  the  pos- 
sessors. 

Hard.  41G;  and  see  10  Rep.  48,  Lampet's  case;  Gilb.  Law  of  Uses,  143. 

2dly,  Where  the  power  of  revocation  is  simply  collateral. 

Hard.  415. 

And  that  is,  where  a  man  hath  no  present  interest  in  the  land,  and  by 
the  revocation  of  the  estate  is  to  have  nothing. 

Gilb.  Law  of  Uses,  144. 

In  this  case,  a  fine  or  feoffment  of  the  land  is  no  extinguishing  of  the 
party's  power ;  for  though  every  man  is  estopped  to  claim  an  interest  con- 
trary to  his  own  act,  whereby  he  passes  an  estate  to  another,  yet,  if  a  man 
makes  a  feoffment,  or  levies  a  fine,  and  then  revokes,  whereby  a  stranger 
claims  an  interest,  the  stranger,  who  is  the  only  person  that  can  claim,  is 
not  estopped  to  claim  it,  for  no  man  is  estopped  from  demanding  his  own 
right  by  the  act  of  another ;  and  if  there  be  no  estoppel  in  this  case,  the 
stranger- hath  a  right  by  the  contract. 

Gilb.  Law  of  Uses,  144;  1  Rep.  174,  Digge's  case. 

It  remains  lastly  to  consider  of  the  manner  of  invocation. 

1st,  If  a  covenantor  is  tenant  for  life,  having  a  power  of  revocation,  upon 

revoking  he  is  seised  of  his  former  estate,  without  entry  or  claim  ;  for  he 

is  in  possession  already  ;  and  therefore  there  can  be  no  entry,  and  the  claim 

where  the  party  is  already  in  possession  is  a  void  solemnity  ;  for  it  doth  not 

make  any  change  of  property  notorious. 

1  Inst.  237;  1  Rep.  173,  174,  Digge's  case;  ||15  H.  7,  fo.  11  b;  and  see  a  transla- 
tion of  the  case,  Sugden  on  Powers,  Append.  No.  L(| 

2dly,  If  there  be  a  tenant  for  life,  with  a  power  to  revoke  the  remain- 
ders, and  limit  new  ones,  he  may  do  both  by  the  same  conveyance. 

1  Inst.  237;   1  Rep.  173,  174,  Digge's  case. 

For  since  upon  revocation  the  former  uses  are  void  ipso  facto,  without 
any  solemnity,  there  is  nothing  to  hinder  why  the  same  conveyance  should 
not  create  new  ones,  and  the  law,  to  support  the  contract,  would  suppose 
the  destruction  of  the  ancient  uses  to  precede  the  creation  of  the  new 
uses. 

Vol.  X.— 21  o  2 


162  USES  AND  TRUSTS. 

(G)  The  several  Kinds  of  Uses  executed  by  the  Statute,  &c. 

[But,  where  a  revoker  limits  new  uses,  not  being  expressly  warranted  by 
his  power  so  to  do,  or,  if  warranted,  then  not  exactly  pursuant  to  the  terms 
of  the  power,  such  uses  cannot  inure  upon  the  original  conveyance,  but 
must  take  effect  out  of  his  interest;  they  must,  consequently,  be  limited  on 
a  new  grant,  or  by  covenant  upon  a  consideration  expressed  ;  the  consider- 
ation of  the  original  uses  not  extending  to  the  new  uses  limited  upon  the 

revocation. 

Powell  on  Powers,  281. 

R  B,  having  issue  only  one  daughter  married  to  E,  levied  a  fine,  and  by 
indenture  declared  the  uses  to  R  B  and  his  heirs  male,  remainder  to  several 
of  his  brothers,  and  the  heirs  male  of  their  bodies,  remainder  to  the  said 
daughter,  &c.  In  the  indenture  there  was  a  power  of  revocation  of  those 
uses,  and  also  a  power  to  declare  new  uses.  An  indenture  was  made  ac- 
cordingly, revoking  the  first  uses,  in  which  also  there  was  a  power  of  revo- 
cation, but  no  power  to  limit  new  uses.  Then  another  indenture  of  revo- 
cation, and  also  declaring  new  uses,  was  made ;  which  indenture  contained 
a  clause,  that  all  other  fines  afterwards  to  be  levied  should  inure  to  those 
uses.  Upon  this  case  it  was  argued,  and  also  agreed  by  the  court,  that  if 
an  indenture  declared  the  uses  of  a  fine,  and  further  that  it  should  be  lawful 
to  revoke,  &c,  and  also  to  limit  new  uses,  &c,  the  party  might,  by  such 
deed,  revoke  and  limit  new  uses  as  often  as  he  pleased,  and  all  the  estates 
should  arise  out  of  the  fine.  But  if  upon  any  such  indenture,  wherein  he 
declared  new  uses  and  reserved  power  of  revocation,  he  omitted  expressly 
to  reserve  a  power  to  limit  new  uses,  he  could  then  only  revoke,  and  could 
not  limit  new  uses  by  virtue  of  the  estate  raised  by  the  first  fine.  And 
thereupon  the  counsel,  in  support  of  the  last  indenture,  showed  another  fine 
levied  the  term  after  the  date  thereof,  by  which  it  was  agreed  that  the 
estates  limited  by  the  last  indenture  were  well  raised. 

Ward  v.  Lenthal,  1  Sid.  343;  ||Sugden  on  Pow.  325;  Gilb.  on  Uses,  by  Sugden,  320.|| 

|| If  a  power  require  the  deed  of  revocation  and  limitation  of  new  uses 
to  contain  a  power  to  revoke  by  deed,  yet  on  the  execution  of  such  re- 
served power  of  revocation  the  donee  need  not  reserve  another  power  to 
revoke. 

Phillips  v.  Phipps,  Sugden  on  Pow.  325,  (4th  ed.)!| 

A  suffered  a  recovery  to  the  use  of  himself  for  life,  remainder  to  B  in 
tail,  remainder  to  C  in  tail,  remainder  to  D  in  tail,  remainder  to  A  in  fee, 
with  power  to  revoke  the  three  remainders  in  tail  by  any  writing  under  his 
hand  and  seal.  He  revoked  them  within  the  terms  of  the  power,  and,  by 
the  same  deed,  declared  new  uses  in  favour  of  the  plaintiff  without  any 
words  of  conveyance,  covenant  to  stand  seised,  or  consideration  expressed. 
The  question  was,  Whether  this  new  declaration  of  uses  was  good  or  not  ? 
It  was  insisted  in  support  of  it,  that  A,  having  revoked  the  intermediate  re- 
mainders, had  the  whole  fee  in  himself,  and  might  dispose  of  it  as  he 
pleased :  and  whether  it  was  by  the  same  deed  or  a  different  deed  was 
not  material.  But  it  was  answered,  and  resolved  by  the  court,  that  true  it 
was,  he  might  by  will,  or  any  new  conveyance,  have  made  such  new  dis- 
position, and  even  this  deed  would  have  been  sufficient  for  such  purpose, 
if  there  had  been  a  new  grant,  or  a  new  covenant  on  consideration  ex- 
pressed :  but,  here,  he  had  declared  new  uses  as  under  the  recovery  ; 
whereas  the  uses  of  the  recovery  were  full  before,  and  the  power  was  only 
to  revoke  and  not  to  declare  new  uses. 

Anon.,  1  Stra.  584.] 


USES  AND  TRUSTS.  163 

(G)  The  several  Kinds  of  Uses  executed  by  the  Statute,  &c. 

3dlv,  He  may  revoke  part  at  one  time,  and  part  at  another ;  for  this  is 
not  entire,  like  a  condition,  for  a  condition  is  entire,  because  the  estate- 
must  be  defeated  in  the  same  manner  that  it  is  made  ;  for  otherwise  the 
solemnity  of  the  entry  will  not  be  equivalent  to  the  solemnity  of  livery; 
but  a  revocation  is  in  the  nature  of  a  limitation,  and  there  is  no  solemnity 
necessary  to  the  defeating  of  the  estate  :  and  therefore  it  may  be  done  by 
parts ;  consequently,  if  a  fine  be  levied  of  part,  that  is  a  revocation  only  of 
that  part. 

1  Inst.  215  a,  237  a;  Gilb.  Law  of  Uses,  145. 

[He  may  revoke  too  conditionally.  Thus,  where  A,  seised  in  fee,  made 
a  settlement  of  the  estates  in  question,  with  power  of  revocation,  and 
seven  years  afterwards  mortgaged  the  same  in  fee  to  one  of  the  remainder- 
men in  the  settlement,  and  the  condition  of  the  redemption  was,  that,  if 
the  mortgagor  or  his  heirs  paid  the  money  at  the  day,  he  should  have  the 
lands  in  his  former  estate  ;  the  question  was,  Whether  this  mortgage  was  a 
total  revocation,  or  only  pro  tanto'l  The  Lord  Keeper  declared,  that  it 
was  a  revocation  pro  tanto  only,  the  mortgagor  being  to  have  the  lands  on 
payment,  as  in  his  former  estate  ;  and  it  was  decreed  accordingly. 

Thome  v.  Thome,  1  Vera.  141,  182  ;  Perkins  v.  Walker,  Ibid.  97. 

But,  Sir  Joseph  Jekyll,  in  giving  his  opinion  in  the  case  of  Fitzgerald 
and  Lord  Fauconberge,  said,  that  he  knew  of  no  case  but  that,  of  a  mort- 
o-ao-e,  wherein  equity  controlled  a  power  of  revocation ;  and  the  reason  of 
that  case  was,  because  the  mortgagor  in  equity  continued  to  be  still  owner 
of  the  estate,  it  being  considered  there  but  as  a  pledge  for  the  money. 
And  the  decision  in  that  case  seems  to  go  a  great  way  in  support  of  the 
opinion. 

Powell  on  Pow.  265. 

There,  F,  being  unmarried,  and  having  no  child,  and  being  seised  of 
estates  of  large  annual  value,  did  by  lease  and  release,  dated  the  2d  and 
3d  of  July,  1712,  as  well  for  settling  the  said  premises  in  his  name  and 
blood,  to  the  several  uses,  trusts,  and  purposes,  and  in  such  manner  as 
thereinafter  limited,  "with  liberty  nevertheless,  to  and  for  him  the  said  F, 
freely  and  clearly  at  his  will  and  pleasure,  to  dispose  of,  charge,  or  alienate 
the  said  premises,  or  any  part  thereof,  for  any  estate  or  estates  whatsoever, 
as  he  should  think  fit ;  and  to  revoke,  recall,  and  make  void  all  and  every 
the  use  and  uses,  trusts,  limitations,  and  appointments  thereby  raised, 
limited,  and  appointed,  mentioned,  and  declared  concerning  the  same,  as 
also  in  consideration  of  5s.,  convey  to  trustees  and  their  heirs  all  the  es- 
tates, to  the  use  of  himself  for  life,  with  remainders  over."  There  was 
also  a  term  created,  among  other  things,  by  sale,  mortgage,  or  demise  thereof, 
for  the  term,  or  any  part  thereof,  to  raise  all  such  sums  as  F  should  owe 
at  his  decease,  and  also  all  such  sums  as  he,  by  his  last  will,  or  any  other 
deed  or  writing  executed  under  his  hand  and  seal,  in  the  presence  of  two 
or  more  witnesses,  should  give  and  appoint  to  be  paid,  or  charge  the  pre- 
mises with,  to  any  person  or  persons  whatsoever :  but,  if  the  person  next 
in  remainder  expectant  on  the  term  should  pay  all  the  said  debts,  annuities, 
and  moneys  so  to  be  devised  or  appointed,  then  the  term  was  to  cease. 
Then  followed  these  provisoes:  first,  "A  proviso  or  power  for  the  said  b  , 
from  time  to  time,  by  any  deed  or  writing  under  his  hand  and  seal,  to  be 
signed  and  duly  sealed  and  delivered  in  the  presence  of  two  or  more  wit- 
nesses, to  demise,  lease,  limit,  or  appoint   the  said   premises,  or  any  o, 


164  USES  AND  TRUSTS. 

(G)  The  several  Kinds  of  Uses  executed  by  the  Statute,  &c. 

them,  to  any  person  or  persons  whatsoever  for  any  term  or  terms  whatso- 
ever, for  so  much  yearly  rent  as  the  said  F  should  think  fit,  and  with  such 
other  conditions  and  agreements  as  the  said  F  should  please."  Secondly, 
"A  proviso,  that  if  any  female,  who,  according  to  the  limitations,  ought 
to  inherit  the  premises,  should  marry  any  person  without  the  consent  of 
the  trustees,  or  should  marry  any  person  that  should  be  a  protestant,  and 
not  of  the  communion  of  the  church  of  Rome  ;  that  then,  and  immedi- 
ately after  such  marriage,  all  the  estates  before  created  and  appointed  for 
the  benefit  of  such  person  so  marrying  should  cease  and  be  void." 
Thirdly,  a  proviso,  "  That  it  should  and  might  be  lawful  to  and  for  the 
said  F,  at  any  time  or  times  during  his  natural  life,  at  his  will  and  plea- 
sure, to  grant,  sell,  or  demise,  the  thereby  granted  premises,  or  any  part 
thereof;  or  by  any  deed  or  writing  under  his  hand  and  seal,  or  by  his  last 
will  and  testament  in  writing,  signed,  sealed,  delivered,  and  published,  in 
the  presence  of  three  or  more  credible  witnesses,  to  revoke,  repeal,  and 
make  void,  all,  every,  or  any  of  the  use  and  uses,  estate  and  estates,  trusts, 
and  limitations  before  raised,  created,  limited  or  appointed  ;  and  to  de- 
clare and  limit  the  same,  or  such  other  new  uses  as  should  seem  most 
meet  and  convenient  to  the  said  F ;  and  then  and  from  thenceforth  the 
estates  and  uses  before  limited  and  appointed,  and  so  revoked  and  re- 
pealed, to  cease  and  determine  and  be  utterly  void,  as  if  the  same  had 
never  been  made,  limited,  and  appointed;  and  that  the  said  F  should  and 
might  dispose  of  the  said  premises,  and  every  part  and  parcel  thereof,  to 
such  other  person  and  persons,  use  and  uses,  as  he  should  think  fit,  any 
thing  before  mentioned  to  the  contrary  in  anywise  notwithstanding." 

Fit'zoeraldetal.  v.  Lord  Fauconberge  etal.,  3  Bro.' Pari.  Ca.  513  ;  S.  C,  Fitzgib.  207. 

By  other  indentures  of  lease  and  release,  dated  the  25th  and  26th  of 
September,  1715,  made  between  F  of  the  one  part,  and  T  and  W  of  the 
other,  reciting,  that  F  stood  indebted  to  several  persons  named  in  a  sche- 
dule thereunto  annexed  in  the  several  sums  therein  mentioned  ;  he,  as  well 
for  securing  the  said  debts,  and  more  speedy  payment  thereof,  and  in  con- 
sideration of  bs.,  as  also  for  other  good  causes,  conveyed  to  T  and  Wand 
their  heirs,  the  premises,  upon  trust  that  they  or  the  survivor  of  them,  &c, 
should,  out  of  the  rents  and  profits  of  the  premises,  or  by  mortgage,  §*c, 
raise  so  much  money  as  should  be  sufficient  to  pay  all  the  debts  mentioned  in 
the  said  schedule,  with  interest,  over  and  above  the  several  anntiities,  rents, 
and  rent  charges  in  the  said  schedule  mentioned,  wherewith  the  said  premises 
stood  charged,  and  pay  the  same  in  full  discharge  of  the  said  debts  and 
interest ;  and,  after  payment  thereof  and  their  own  charges  being  satisfied, 
that  "  they  should  pay  the  overplus  thereof,  (if  any,)  and  reconvey  such  part 
of  the  premises  as  should  remain  unsold,  to  the  said  F,  or  to  such  person  and 
persons,  and  to  such  use  and  uses,  estate  and  estates,  as  the  said  F  should 
by  any  deed  or  writing  under  his  hand  and  seal,  attested  by  two  or  more 
credible  witnesses,  limit,  direct,  and  appoint  the  same."  This  indenture 
was  attested  only  by  two  witnesses,  and  remained  in  the  custody  of  W,  the 
trustee,  till  his  death. 

Then,  by  indenture  dated  the  26th  of  September,  1715,  executed  by  all 
the  said  three  parties,  reciting  the  lease  and  release  of  the  25th  and  26th 
of  September,  1715,  it  was  declared,  that  it  should  and  might  be  lawful  for 
the  said  F,  at  any  time  or  times  thereafter  during  his  life,  at  his  will  and 
pleasure,  by  any  deed  or  writing  under  his  hand  and  seal,  attested  by  two 
or  more  witnesses,  or  by  his  last  will  in  writing,  attested  by  three  or  more 


USES  AND  TRUSTS.  1G5 

(G)  The  several  Kinds  of  Uses  executed  by  the  Statute,  &c. 

witnesses,  to  revoke,  repeal,  and  make  void,  all  or  any  of  the  trusts  and 
estates  in  the  said  indenture  of  release  of  the  26th  September,  1715,  raised, 
created,  limited,  and  appointed  of  the  said  premises,  and  every  part  there- 
of; and  to  declare,  limit,  and  appoint  the  same  to  such  other  use  and  uses 
as  should  seem  most  meet  and  convenient  to  hirn  ;  and  that,  from  thence- 
forth, the  trusts  and  estates  so  revoked  and  repealed,  should  cease  and  be 
void,  as  if  the  same  had  never  been  created,  limited,  or  appointed  ;  and 
that  it  should  and  might  be  lawful  for  the  said  F  to  dispose  of  the  same 
premises,  or  any  part  thereof,  to  such  other  person  and  persons,  use  and 
uses,  as  he  should  think  fit. 

F  died  on  the  24th  of  January,  1716,  having  made  no  appointment  or 
disposition  of  the  estate  after  the  execution  of  the  deeds  of  1715. 

And,  upon  these  several  instruments,  a  question  arose  between  the  heir 
at  law  of  F  and  the  claimants  under  the  settlement  of  1712,  whether  the 
deed  of  September,  1715,  for  securing  the  creditors  of  F  was  not  a  revoca- 
tion of  the  settlement  of  1712,  pursuant  to  some  or  one  of  the  provisoes 
therein  contained.  It  was  contended  on  the  part  of  the  claimants  under 
the  settlement  of  1712,  that  if  these  deeds  of  1715  were  deemed  to  be  a 
revocation  of  that  settlement,  (which  upon  other  grounds  it  was  argued 
they  could  not  be,)  yet  they  could  not  be  a  total  revocation  ;  because  it  was 
admitted,  that  those  deeds  operated  only  as  an  implied  revocation,  by 
reason  of  their  inconsistency  with  the  settlement  of  1712  ;  and,  therefore, 
were  no  further  a  revocation  than  such  inconsistency  extended :  then,  the 
release  having  conveyed  the  premises  in  trust  to  raise  money  for  paying  the 
debts  mentioned  in  a  schedule  thereunto  annexed,  and  afterwards  to  reconvey 
to  F,  or  such  persons  or  uses  as  he  should  appoint,  without  saying  to  F  or 
his  heirs,  or  limiting  the  estate  in  default  of  appointment,  which  was  the 
case  that  had  happened,  it  was  apprehended  that  the  release  of  1715  was 
no  further  inconsistent  with  the  settlement  of  1712,  than  as  to  the  particular 
uses  specified  in  that  deed,  and,  consequently,  as  to  the  rest  of  the  estate, 
did  not  revoke  the  settlement  of  1712  ;  and  that,  under  those  circumstances, 
a  court  of  equity  ought  to  restrain  it  from  operating  any  further  than  to 
satisfy  the  particular  purpose.  It  was  argued  on  the  other  side  as  to  this 
point,  that  F,  having,  by  the  deeds  of  1715,  conveyed  the  fee  and  inheritance 
of  the  whole  estate  to  T  and  W  upon  trusts  and  for  uses  utterly  inconsist- 
ent with  those  of  the  settlement  of  1712,  this  latter  conveyance  must,  con- 
sequently, be  a  complete  revocation  of  the  former ;  the  legal  estate  being 
vested  in  new  trustees,  who  could  be  seised  thereof  upon  no  other  trusts 
than  the  new  ones,  and  F  having  made  no  subsequent  appointment  of  such 
part  as  should  remain  unsold,  after  the  particular  purposes  were  answered, 
a  trust  must  therefore  necessarily  result  for  the  benefit  of  him  and  his  heirs, 
according  to  the  established  rules  both  of  law  and  equity  ;  consequently, 
there  could  be  no  foundation  for  a  court  of  equity  to  control  or  abridge  the 
operation  of  the  deeds  of  1715,  by  confirming  them  to  be  only  a  revoca- 
tion pro  tanto,  merely  to  disinherit  one  of  the  coheirs  at  law ;  and  of  this 
opinion  was  Lord  Chancellor  King,  assisted  by  Sir  Joseph  Jekyll,  and  Lord 
Chief  Baron  Reynolds:  and  it  was  decreed  accordingly.  And  on  appeal 
to  the  House  of  Lords,  the  judges  having  delivered  their  opinions  seriatim 
upon  the  question,  Whether  the  deed  of  1715  were  a  revocation  of  the  deed 
of  1712  ;  and  if  so,  whether  the  said  deed  of  1715  were  a  total  revocation, 
or  a  revocation  pro  tanto  ?  it  was  ordered,  that  the  appeal  should  be  dis- 
missed, and  the  decree  affirmed.] 


1GG  USES  AND   TRUSTS. 

(G)  The  several  Kinds  of  Uses  executed  by  the  Statute,  &c. 

4thly,  The  power  of  revocation  follows  the  estate. 

Thus,  in  a  covenant  to  stand  seised  to  the  use  of  A  for  life,  remainder  to 
B  and  his  heirs,  with  power  of  revocation  upon  payment  of  money  by  A  or 
his  assigns,  to  B  or  his  assigns;  if  B  dies,  A  may  tender  to  the  heir,  who 
is  in  law  the  assignee  to  this  purpose. 

Gilb.  Law  of  Uses,  145,  cites  Ley,  55,  57,  Allen's  case. 

5thly,  A  power  of  revocation  is  in  some  cases  ||the  subject  of  ||  a  forfeiture. 

If  there  be  tenant  for  life,  with  power  of  revocation  over  the  estates  in 
remainder,  and  the  revocation  depends  upon  circumstances  inseparably 
annexed  to  the  person  of  tenant  for  life,  this  cannot  be  forfeited  ;  but,  if  it 
depend  upon  circumstances  which  may  be  performed  by  another,  the  king 
shall  take  advantage  of  it,  and  revoke  the  uses :  as,  if  the  revocation  is  to 
be  by  writing  under  the  parties'  own  hands  and  seals,  this  cannot  be  for- 
feited to  the  king ;  but,  if  the  revocation  is  to  be  upon  tender  of  a  ring  by 
himself,  or  any  other  for  him  during  his  life,  this  power  is  forfeitable. 

1  Vent.  128,  132;  Smith  v.  Wheeler,  Gilb.  Law  of  Uses,  146. 

6ihly,  If  a  man  makes  a  feoffment  with  power  of  revocation,  when  he  hath 
executed  that  power  he  cannot  limit  new  uses  upon  the  same  feoffment;  but 
otherwise  it  is,  if  he  had  power  to  revoke  and  limit  new  ones  on  the  same 
feoffment,  for  then  he  might  revoke  and  limit  new  uses,  with  a  second  power 
of  revocation,  &c,  and  so  in  infinitum,. (a) 

1  Vent.  193,  Jones  v.  The  Countess  of  Manchester;  2  Roll.  Abr.  262;  ||S.  C.  3  Keb. 
7,  nomine  Fowler  v.  .Tones.  («')  A  deed  executed  under  a  power  is  not  revocable,  un- 
less a  power  of  revocation  is  reserved  ;  and  every  power  reserved  in  a  deed  executing  a 
power  will  be  strictly  construed;  and  therefore  a  mere  power  of  revocation  in  such  a 
deed  will  not  authorize  a  limitation  of  new  uses.  Ward  v.  Lenthal,  1  Sid.  343.  But 
it  seems  that  though,  in  an  original  settlement,  a  power  of  revocation  only  be  reserved, 
yet  a  power  to  limit  new  uses  is  implied.  Fowler  v.  North,  3  Keb.  7.  Anon.,  1  Chan. 
Ca.  242 ;  Colston  v.  Gardner,  2  Chan.  Ca.  46,  unless  a  contrary  intention  can  be  col- 
lected from  the  whole  settlement,  Anon.,  Stra.  584 ;  or  theestate  is  expressly  limited 
to  other  uses.  Atwaters  v.  Birt,  Cro.  Eliz.  856.  Sir  E.  Sugden's  note,  Gilb.  on 
Uses,  319.|| 

Where  a  conveyance  to  uses  inures  by  way  of  transmutation  of  posses- 
sion, the  uses  may  be  revoked  without  deed. 

2  Salk.  677,  Jones  v.  Morley. 

[Where  a  power  of  appointment  is  given,  a  power  of  revocation  is  like- 
wise given,  although  no  express  power  of  revocation  be  reserved  in  the 
deed  creating  the  power  of  appointment.  And  where  there  is  a  power  of 
revocation,  the  law  also  gives  a  power  to  limit  new  uses, (b)  though  no 
power  of  new  limitation  be  expressed  in  the  deed ;  for  he  who  has  power 
to  revoke  has  also  power  to  limit. 

Adams  v.  Adams,  Cowp.  651.  (b)  Colston  v.  Gardner,  2  Ch.  Cas.  46;  Lady  Hast- 
ings's case,  3  Keb.  7 ;]   ||6ilb.  on  Uses,  by  Sugden,  319,  429. || 

I  By  a  marriage  settlement  made  by  tenant  in  tail,  he  settles  the  premises 
to  himself  for  life  and  to  the  children  of  the  marriage  in  strict  settlement; 
with  a  proviso  that  it  shall  be  lawful  for  him  by  deed  or  instrument  in  writ- 
ing attested  by  three  witnesses,  and  to  be  enrolled,  with  the  consent  in 
writing  of  certain  trustees,  to  revoke  the  old  and  to  declare  new  uses.  A 
deed  of  revocation  executed  by  him  and  all  the  trustees  in  person  except 
one,  whose  consent  was  given  by  means  of  a  general  power  of  attorney  be- 
fore made  by  him  to  the  settler  to  consent  to  any  such  deed  he  might  think 
proper  to  make,  by  virtue  of  which  the  settler  executed  the  deed  for  and 
in  the  name  of  that  trustee,  is  bad,  though  properly  attested  and  enrolled: 
for  the  consent  so  given  is  not  sufficient,  because  it  would  operate  as  a  total 


USES  AND   TRUSTS.  1G7 

(H)  Of  the  Cases  out  of  the  Statute. 

destruction  of  the  check  intended  by  requiring  the  personal  approbation  of 
the  trustees.  And  another  deed  of  revocation  properly  executed  and  as- 
sented to,  but  not  enrolled  till  after  the  settler's  death,  will  also  be  void : 
for  every  thing  required  to  be  done  in  the  execution  of  such  a  power  must 
be  strictly  complied  with,  and  must  be  completed  in  the  lifetime  of  the 
person  by  whom  it  is  to  be  executed.  Neither  can  the  defect  of  one  deed 
be  supplied  by  the  other. 

3  East,  410,  Hawkins  v.  Kemp. 

A  power  of  appointment  under  a  marriage  settlement  unto  and  among 
all  or  any  the  child  or  children  of  the  marriage,  for  such  estates  as  the  hus- 
band and  wife  or  the  survivor  of  them,  should  from  time  to  time,  either 
with  or  without  power  of  revocation,  direct,  limit,  or  appoint,  may  be  exe- 
cuted by  the  survivor,  after  a  joint  appointment  reserving  to  them  and  the 
survivor  a  power  of  revocation  and  appointment. 

1  East,  442,  Brudenell  v.  Elwes.} 

3.  How  they  may  be  suspended,  revived,  or  extinguished. 

It  has  been  shown  that  where  a  feoffment,  &c,  is  made  to  feoffees  to 
contingent  uses,  and  the  feoffees  make  a  feoffment  over  before  the  contin- 
gent uses  happen  to  be  in  esse,  that  thereby  the  uses  are  destroyed  forever. 
3  H&rfvide  Gilbert  by  Sugden,  288.|| 

But  if,  in  case  of  a  feoffment  to  contingent  uses,  the  feoffees  are  disseised 
before  the  contingent  uses  vest,  hereby  these  contingent  uses  are  only  sus- 
pended; and  by  the  re-entry  (a)  of  the  feoffees  the  ancient  uses  will  be  revived. 

||(a)  The  doctrine  contended  for  by  Sir  E.  Sugden  and  Mr.  Fearne,  that  contingent 
uses  are  not  executed  by  means  of  a  scintilla  juris  in  the  feoffees,  does  away  with  the 
necessity  of  an  actual  entry  in  such  case,  and  makes  the  right  sufficient  to  support  the 
contingent  uses.  See  Fearne's  Cont.  Rem.  294,  295 ;  Gilbert  by  Sugden,  note,  p.  296 ; 
Sugden  on  Pow.  c.  1,  §  3.|| 

And  therefore,  if  the  feoffees  release  to  the  disseisor,  and  thereby  bar 
themselves  of  their  entry,  the  uses  are  extinguished,  and  shall  not  be  re- 
vived ;  and  the  party  grieved  has  no  remedy  but  in  Chancery  against  the 
feoffees  for  breach  of  trust. 

(H)  Of  the  Cases  out  of  the  Statute. 

It  has  been  observed,  that  there  are  three  ways  of  creating  a  use  or  trust, 
which  the  statute  cannot  execute ;  as,  where  uses  are  limited  upon  uses ; 
or  where  a  term  is  raised  and  limited  in  trust ;  or,  lastly,  where  lands  are 
limited  to  trustees  to  pay  over  the  rents  and  profits. 

See  ante,  letter  (D.)  ||The  leading  case  deciding  that  a  use  cannot  be  limited  on  a 
use  in  Tyrrell's  Ca.,  Dyer,  155  a.  See  Sir  E.  Sugden's  remarks  on  this  narrow  con- 
struction of  the  statute,  Gilb.  on  Uses,  348,  and  Blackstone's  Com.  335. |j 

1.  Jfnere  uses  are  limited  upon  Uses. 

Thus,  if  a  man  bargains  and  sells  his  lands  to  A  to  the  use  of  B,  the  sta- 
tute cannot  execute  the  use  in  B ;  for  by  the  bargain  and  sale,  which  implies 
a  consideration,  there  is  a  use  in  A  ;  and  before  the  statute  it  was  impossi- 
ble that  two  distinct  persons  should  have  the  use  of  the  same  land. 

Gilb.  Law  of  Uses,  162.  &  The  statute  of  uses  does  not  execute  a  use  upon  a  use. 
M'Cartee  v.  Orphan  Asylum  Society,  9  Cowen,  437.g/ 

/3The  statute  does  not  execute  a  use  upon  a  use,  nor  a  chattel  interest, 
nor  where  the  trustee  not  only  holds  the  estate,  but  has  some  act  to  do,  as 
to  receive  the  rents  and  profits,  or  to  convey,  &c. 

Wilson  v.  Cheshire,  1  M'Cord's  Ch.  238.gr 


168  USES  AND  TRUSTS. 

(H)  Of  the  Cases  out  of  the  Statute.     {Attendant  Terms.) 

And  by  the  statute,  the  first  use  cannot  be  executed  in  A,  since  there 
could  not  be  two  plenary  possessors,  and  the  second  use  being  contrary  to 
the  disposition  to  A,  must  be  null  and  void.  But  the  Chancery  that  looks 
upon  the  interest  of  the  parties  in  conveyances,  construes  A  only  as  an  in- 
strument to  take  the  legal  estate ;  and  that  in  conscience  he  is  bound  to 
answer  the  trust  to  B  which  he  hath  taken.  Qucere  tamen,  if  the  consider- 
ation moves  from  A  ? 

Chan.  Ca.  114,  115,  Ash  v.  Gallen;  Gilb.  Law  of  Uses,  162. 

If  a  man  enfeoff  another  to  the  use  of  J  S  and  his  heirs,  and  upon  this 
consideration,  that  if  J  N  shall  pay  so  much  money,  then  the  said  J  S  and 
his  heirs  shall  be  seised  to  the  use  of  J  N  and  his  heirs,  J  N  pays  the  mo- 
ney, the  use  is  not  executed  to  him  by  the  statute ;  but  the  Court  of  Chan- 
cery will  undoubtedly  support  such  trust. 

Gilb.  Law  of  Uses,  162;  Poph.  81,  Dillon  v.  Fraine. 

A  devise  supposes  a  consideration  ;  and  therefore  it  cannot  be  averred 
to  any  other  use  than  to  the  use  of  the  devisee  ;  for  that  were  an  averment 
contrary  to  the  design  of  the  will  appearing  in  the  words. 

4  Rep.  4,  Vernon's  case.     |]See  Gilbert,  by  Sugden,  333,  n.|| 

But  if  a  use  be  expressed,  it  shall  be  to  the  use  of  cestui  que  use,  and 
will  execute  ;  for  the  will  has  only  an  implied  use  where  no  other  is  limited, 
and  expressum  facit  cessure  taciturn. 

2  Vent.  312,  Burchett  v.  Durdant.  [jThe  point  in  the  text  (though  not  a  point  ad- 
judged in  Burchett  v.  Durdant)  is  correctly  stated,  for  though  it  has  been  questioned, 
it  is  now  quite  clear  that  the  statute  does  extend  to  devises  to  uses.  See  Hartop's  ca., 
1  Leo.  253;  Andrews's  ca..  Mo.  107;  Popham  v.  Bampfield,  1  Vern.  79;  Brourrhton 
v.  Langley,  2  Ld.  Raym.  873  ;  Hopkins  v.  Hopkins,  1  Atk.  589  ;  Bagshaw  v.  Spencer, 
1  Ves.  143;  Perry  v.  Phelps,  1  Ves.  jun.  255;  Thompson  v.  Lawley,  2  Cos.  &  P. 
311;  Butl.  Co.  Lit.  271  b,  3,  §  5;  Pow.  on  Dev.  272;  1  Sand,  on  Uses,  195;  Sug- 
den  on  Pow.  118  ;  Gilb.  on  Uses  by  Sugden,  356.  In  one  of  the  main  points  actually 
adjudged  in  Burchett  v.  Durdant,  that  case  has  been  overruled  by  subsequent  cases,  viz., 
in  deciding  that  a  devise  to  A  in  trust  to  permit  B  to  receive  the  rents  and  profits,  car- 
ried the  legal  estate  to  A,  and  only  a  trust  to  B,  whereas  it  is  now  settled  that  in  such 
case  the  trust  is  executed  in  B.  See  Shapland  v.  Smith,  1  Bro.  C.  C.  74;  Silvester 
v.  Wilson,  2  Term  R.  414  ;  Harton  v.  Harton,  7  Term  R.  652  ;  Kenrick  v.  Beauclerk, 
3  Bos.  &  Pul.  175;  WagstafT  v.  Smith,  9  Ves.  jun.  524;  Right  v.  Smith,  12  East, 
455.  Where  the  devise  is  unto  and  to  the  use  of  the  trustees,  it  carries  the  legal  estate 
to  them.     15  Ves.  371  ;  Gilb.  on  Uses,  by  Sugden,  47,  n.     See  post,  p.  174.|| 

But  if  lands  be  devised  to  A  during  the  life  of  B,  in  trust  for  B,  the  re- 
mainder to  the  heirs  of  B  now  living,  this  is  a  Chancery  trust  in  B,  and 
not  executed  by  the  statute  ;  for  this  was  the  design  of  limiting  an  estate  to 
A,  that  a  tail  might  not  be  executed  in  B,  whereby  he  might  have  a  power 
to  dock  it. 

2  Vent.  312,  Burchett  v.  Durdant ;  Gilb.  Law  of  Uses,  162. 

2.   Where  Terms  are  raised  and  limited  in  Trust ;  and  these  Limitations  are  twofold, 

1.  Of  such  as  wait  on  the  Inheritance. 

2.  Of  Terms  in  Gross. 

1.  Of  Terms  which  wait  on  the  Inheritance. 

The  original  of  these  was  in  the  time  of  Queen  Elizabeth,  when  mort- 
gaging by  way  of  raising  terms  was  invented  ;  and  then  if  a  marriage  settle- 
ment was  made,  or  a  purchase  upon  a  valuable  consideration,  and  the 
mortgage  was  discharged  by  the  purchase-money,  or  the  marriage  portion, 


USES  AND  TRUSTS.  169 

(H)  Of  the  Cases  out  of  the  Statute.     {Attendant  Terms.) 

it  was  thought  fit  (a)  to  take  an  assignment  of  the  term  in  trust  to  the  same 
persons  to  whom  the  inheritance  was  limited,  to  protect  it  against  latter 
mortgages. 

Gilb.  Law  of  Uses,  163.  [(a)  The  reason  of  this  was,  that  the  terms  do  not  deter* 
mine,  unless  there  be  a  special  proviso,  by  the  performance  of  the  trusts  for  which  they 
were  created.  In  these  cases  the  legal  interest,  during  the  continuance  of  the  term,  is 
in  the  trustee,  but  the  owner  of  the  estate  is  entitled  to  the  equitable  and  beneficial  in- 
terest. As  courts  of  common  law  had  determined,  that  the  possession  of  the  lessee  for 
years  was  the  possession  of  the  owner  of  the  freehold,  courts  of  equity  determined,  that 
where  the  tenant  for  years  was  buta  trustee  for  the  owner  of  the  inheritance,  he  should 
not  oust  his  cestui  que  trust,  or  obstruct  him  in  any  act  of  ownership,  or  in  making  any 
assurances  of  his  estate.  In  these  respects,  therefore,  the  term  is  consolidated  with  the 
inheritance;  it  follows  the  descent  of  the  heir  and  all  the  alienations  made  of  the  inhe- 
ritance, or  of  any  particular  estate  or  interest  carved  out  of  it,  by  deed,  will,  or  act  in 
law.  Whitchurch  v.  Whitchurch,  2  P.  Wms.236;  Gilb.  R.168;  9  Mod.  124;  Charl- 
ton v.  Low,  3  P.  Wms.  330;  Villiers  v.  Villiers,  2  Atk.  72  ;  Willoughby  v.  Wil- 
loughby,  Ambl.  282 ;  but  more  fully  reported  1  Term  R.  763  ;  Goodright  v.  Sales, 
2  Wils.  329;  Scott  v.  Fenhoulet,  1  Bro.  Ch.  R.  69;  {7  Ves.  J.  567.  Maundrell  v. 
Maundrell;  10  Ves.  J.  246,  S.  C. ;  9  Ves.  J.  509,  Capel  v.  Girdler.}  But,  though  the 
trust  or  benefit  of  the  term  is  annexed  to  the  inheritance,  the  legal  interest  of  the  term 
remains  distinct  and  separate  from  it  at  law;  and  the  whole  benefit  and  advantage  of 
the  term  arises  from  this  separation,  by  affording  the  means  of  protecting  honafide  pur- 
chasers of  real  estates,  and  also  of  enabling  courts  of  equity  to  keep  real  estates  in  the 
right  channel ;  courts  of  equity  considering  such  terms  as  creatures  of  equity.  See 
Mr.  Butler's  note,  Co.  Lit.  293,  and  Willoughby  v.  Willoughby,  ubi  supra  ;  and  Nourse 
v.  Yarworth,  Finch's  R.  160.  And  though  it  seems  to  be  now  settled  at  law,  that  a 
plaintiff  in  ejectment  ought  not  to  be  nonsuited  by  a  term  standing  out  in  his  own  trus- 
tee, or  a  satisfied  term  set  up  by  a  mortgagor  against  a  mortgagee,  yet  to  effect  this  the 
jury  must  presume  in  either  of  these  cases  the  term  to  be  surrendered  ;  for  without  a 
surrender,  the  estate  of  the  trustee  must  prevail  at  law.  Goodtitle  v.  Knott,  Cowp.  46 ; 
Doe  v.  Pott,  Dougl.  721  ;  Lade  v.  Holford,  Bull.  N.  P.  110;  Doc  v.  Pegge,  1  Term 
R.  758  ;  Doe  v.  Staple,  2  Term  R.  698;  Doe  v.  Sybourn,  7  Term  R.  3  ;  Goodtitle  v. 
Jones,  Ibid.  47;  {8  Term,  2,  Doe  v.  Wharton;  Ibid.  122,  Roe  v.  Reade;  12  Ves.  J.  239, 
251,  Hillary  v.  Waller;  5  East,  138,  Doe  v.  Wroot ;  6  Ves.  J.  184,  Evans  v.  Bicknell ; 
9  Ves.  J.  31,  Walwyn  v.  Lee;  10  Ves.  J.  262,  Maundrell  v.  Maundrell ;  2  Johns.  Rep. 
81,  Jackson  v.  Chase;  Ibid.  221,  Jackson  v.  Pierce;  3  Johns.  Rep.  422,  Jackson  v. 
Deyo.  Vide  1  Hen.  &  Mun.  228  ;  1  Binn.  133.}  At  law  every  term  standing  out  is  a 
term  in  gross.  The  difference  in  equity  is  produced  by  affecting  the  person  holding 
the  term  with  a  trust  to  attend  the  inheritance,  which  may  be  either  by  express  decla- 
ration, or  by  implication  of  law.  If  it  be  by  express  declaration,  it  is  immaterial 
whether  the  term,  if  in  the  same  hand  with  the  inheritance,  would  or  would  not  merge, 
or  whether  it  be  subject  to  some  ulterior  limitation,  to  which  the  inheritance  is  not  sub- 
ject; for  the  express  declaration  is  sufficient  to  make  it  attendant  upon  the  inheritance. 
If  it  is  to  be  made  attendant  upon  the  inheritance  by  implication  of  law,  then  it  is  neces- 
sary that  it  should  not  be  subject  to  any  other  limitation,  and  that  the  owner  of  the  in- 
heritance should  be  entitled  to  the  whole  interest  in  the  trust  of  the  term  ;  so  that  ac- 
cording to  the  rule  laid  down  in  Best  v.  Stamford,  Pr.  Ch.  253;  2  Freem.  288,  if  the 
term  and  inheritance  had  been  in  the  same  hand,  the  term  would  have  merged.  The 
intent  to  purchase  the  whole  interest  will  not,  it  seems,  be  sufficient  to  make  the  term 
attendant  on  the  inheritance  by  implication  of  law.  Scott  v.  Fenhoulet,  1  Bro.  Ch. 
R.  69.  But  any  limitation,  though  void  in  law,  which  shows  an  intention  to  sever  the 
term  from  the  inheritance,  will  be  sufficient  for  that  purpose.  Hayter  v.  Rod,  1  P. 
Wms.  359.  And  therefore  a  term,  though  limited  in  trust  for  A  and  his  heirs,  will  de- 
volve on  the  personal  representative  of  A.  Hunt  v.  Baker,  2  Freem.  62 ;  Attorney- 
General  v.  Sandys,  Ibid.  131.  And  though  a  term  raised  for  a  particular  purpose,  will, 
when  such  purpose  is  answered,  vest  in  the  heir,  yet  he  must  take  it  as  a  term,  and  it 
will  go  in  a  course  of  administration,  and  not  in  a  course  of  descent.  Levit  v.  Need- 
ham,  2  Vern.  138.] 

And  hence  it  is,  that  if  the  inheritance  was  limited  in  tail,  with  remain- 
der over,  the  trust  of  the  term  might  be  limited  in  the  same  manner ;  and, 
therefore,  if  the  tail  was  docked  by  fine  and  recovery,  the  trust  of  the  tail 
and  remainders  ceased,  and  attended  the  inheritance  in  fee ;  for  the  trusts 

Vol.  X.— 22  P 


170  USES   AND   TRUSTS. 

(H)  Of  the  Cases  out  of  the  Statute.     {Attendant  Terms.) 

could  not  protect  or  attend  these  estates  that  were  not  in  being ;  and  the 
trustee,  who  is  but  an  instrument  to  protect  others,  cannot  have  it  to  his 
own  use. 
.  Cas.  of  Perp.  3,  4,  5,  11. 

||The  earlier  cases,  as  to  presuming  surrenders  of  outstanding  terms,  are 
referred  to  in  the  note,  p.  169,  supra.  Where  the  trustee  ought  to  convey 
to  the  beneficial  owner,  it  seems  now  clear  that  in  general  a  court  of  law 
will  leave  it  to  the  jury  to  presume  that  he  has  conveyed,  where  such  a 
presumption  may  reasonably  be  made,  in  order  to  prevent  a  just  title  from 
being  defeated  by  a  mere  matter  of  form. 

Doe  v.  Sybourn,  7  Term  R.  2;  and  see  Bartlett  v.  Dowries,  3  Barn.  &  C.616.JJ 

But  in  such  cases  the  court  must  first  see  that  there  is  nothing  but  the 
form  of  a  conveyance  wanting ;  and  in  no  case  can  such  a  presumption  be 
made  where  it  would  have  been  contrary  to  the  duty  of  the  trustee  to  have 
conveyed  to  the  party. 

Keane  v.  Deardon,  8  East,  267. 

Where  Lord  Oxford  had  executed  in  1727  a  mortgage  for  1000  years, 
and  in  1751  he  executed  a  marriage  settlement,  reciting  that  27,000/.,  part 
of  the  lady's  fortune,  was  to  be  applied  to  the  discharge  of  the  mortgage  ; 
and  since  that  time  no  mention  was  made  of  the  term,  till  in  a  mortgage- 
deed  of  1802  it  was  assigned  to  secure  the  mortgage-money  :  on  an  eject- 
ment being  brought  by  a  party  claiming  under  the  assignees  of  the  term, 
it  was  objected  for  the  defendant  that  it  must  be  presumed  to  be  surren- 
dered,— first,  since  the  recital  in  the  deed  of  1751  showed  that  an  adequate 
sum  was  to  be  applied  to  discharge  the  mortgage,  and  there  was  no  evi- 
dence of  the  term  having  been  recognised  till  1802  ;  and  secondly,  that 
the  deeds  could  not  have  come  into  the  possession  of  Lord  Oxford,  unless 
the  money  had  been  paid  off.  The  Court  of  King's  Bench  and  the  learned 
baron  who  tried  the  cause  held,  that  a  surrender  could  not  be  presumed, 
since  there  was  no  purpose  of  justice  to  be  answered  by  presuming  it ;  nor 
was  it  for  the  interest  of  the  owner  of  the  inheritance :  it  might  have  been 
his  intention  to  keep  alive  the  term. 

Doe  dem.  Graham  v.  Scott,  11  East,  478. 

Where  a  term  was  assigned  in  1735  to  raise  an  annuity,  and  subject 
thereto  to  attend  the  inheritance,  and  no  act  had  been  subsequently  done 
to  recognise  the  term,  except  that  on  sale  in  1801  of  a  small  part  of  the 
estate,  for  redeeming  the  land-tax,  the  owner  had  covenanted  to  produce 
to  the  purchaser  the  deeds  creating  and  assigning  the  term;  the  term 
wras  presumed,  in  1819,  to  be  surrendered.  It  is  to  be  observed,  that  this 
was  an  ejectment  brought  by  a  party  claiming  as  heir  at  law,  against  an- 
other person  claiming  the  same  character;  and  the  court  distinguished  this 
from  Doe  v.  Scott,  since  there  the  term  had  been  dealt  with  as  subsisting; 
and  it  would  have  been  prejudicial  to  the  owner  of  the  inheritance,  if  a 
surrender  had  been  presumed  :  here  it  was  considered  for  the  interest  of 
the  owner  of  the  inheritance, (a)  that  the  term  should  be  treated  as  surren- 
dered. 

Doe  v.  Wrighte,  2  Barn.  &  Aid.  719.  (a)  Independent  of  the  event  of  the  particular 
suit  in  which  the  question  arises,  it  seems  that  in  all  cases  it  is  for  the  benefit  of  the 
owner  of  the  inheritance  that  the  term  should  be  outstanding  as  a  protection  against 
encumbrances;  while,  on  the  other  hand,  there  is  in  all  cases  the  inconvenience  of 
being  obliged  to  find  out  the  termor  or  his  representative,  and  incur  the  expense  of  an 
assignment,  which  inconvenience  of  course  increases  as  the  term  grows  older. 


USES  AND  TRUSTS.  171 

(H)  Of  the  Cases  out  of  the  Statute.    (Attendant  Terms.) 

In  a  recent  case,  the  doctrine  of  presuming  surrender  appears  to  have 
been  carried  to  a  greater  extent  than  in  former  cases.  In  1762,  a  mort- 
gage-term of  1000  years  was  created  by  Francis  Hare  Naylor,  the  owner 
of  the  fee ;  and  several  other  charges  were  made  previously  to  and  in  the 
year  1770.  In  1771,  Naylor  devised  the  estate  to  trustees  to  sell.  In 
1779  they  sold  and  conveyed  to  J.  Newman  in  fee  ;  and  the  1000  years' 
term  was,  in  consideration  of  the  payment  of  the  mortgage-money,  as- 
signed by  a  separate  deed  in  1779  to  Denman,  his  executors,  administra- 
tors, and  assigns,  in  trust  for  the  said  John  Newman,  his  heirs  and  assigns, 
and  to  be  assigned,  conveyed,  and  disposed  of  as  he  or  they  should  direct 
and  appoint,  and  in  the  mean  time,  and  until  such  appointment,  to  attend 
the  inheritance.  In  October,  1790,  John  Newman  died  intestate,  leaving 
Richard  his  brother  and  heir.  In  November,  1797,  Richard  died,  leaving 
Richard  his  son  his  heir,  then  a  minor.  In  1808,  the  last-named  Richard, 
gave  a  warrant  of  attorney  to  the  lessor  of  the  plaintiff",  to  enter  up  judg- 
ment, which  was  immediately  done.  In  1810,  Mr.  Denman,  the  trustee 
of  the  term,  died  intestate,  leaving  J  D  his  son  and  next  of  kin.  In  1814, 
Richard  Newman,  on  his  marriage,  settled  the  estate  to  the  use  of  himself 
for  life,  with  remainder  in  strict  settlement.  In  1816  he  sold  and  con- 
veyed his  life-estate  to  his  mother,  and  she  devised  the  estate  to  certain 
persons  under  whom  the  defendant  was  tenant.  In  1818,  the  lessor  of 
plaintiff  revived  the  judgment  by  scire  facias ,  and  issued  an  elegit ;  and, 
on  the  13th  of  March,  1818,  an  inquisition  was  taken  thereon,  and  then 
the  ejectment  was  brought.  In  1819,  (after  the  commencement  of  the 
ejectment,)  John  Denman,  as  son  and  next  of  kin  of  Mr.  D.,  took  out  ad- 
ministration to  him  ;  and  by  direction  of  the  devisees  of  the  purchaser,  in 
the  usual  way  assigned  the  term  to  John  Newman,  a  trustee  for  them,  to 
attend  the  inheritance.  The  learned  judge  left  it  to  the  jury  to  presume  a 
surrender  of  the  term,  which  they  did,  and  found  a  verdict  for  the  lessor 
of  the  plaintiff.  And  the  Court  of  King's  Bench  afterwards  confirmed  the 
direction,  the  Chief  Justice,  in  his  judgment,  relying  principally  on  the 
length  of  time  elapsed,  during  which  the  term  was  never  dealt  with  or  re- 
cognised ;  especially  on  its  not  having  been  in  any  way  noticed  on  the 
marriage  settlement  made  in  1814,  and  the  conveyance  by  Richard  New- 
man to  his  mother  in  1816.  The  above  decision  powerfully  attracted  the 
attention  of  the  profession. 

Doe  dem.  Putland  v.  Hilder,  2  Barn.  &  A.  782.  Lord  Eldon  is  stated  to  have  dis- 
approved of  this  decision  on  several  occasions,  Sugden  Ven.  &  P.  410,  443,  445  ;  and 
see  Sir  E.  Sugden's  observations  on  it,  Ibid. ;  and  see  the  observations  of  Lord  Eldon 
on  this  doctrine,  6  Ves.  184;  and  of  Sir  Thomas  Plumer,  2  Jac.  &  W.  158;  and 
1  Cm.  Dig.  486. 

An  ejectment  was  afterwards  brought  by  the  Newmans  and  Denman 
against  Putland,  the  lessor  in  the  former  case,  to  recover  back  the  estate. 
On  the  trial,  the  lessors  of  the  plaintiff'  proved  a  mortgage  in  fee  to  one 
Markwick,  in  August,  1814,  by  R.  Newman  the  son,  who  afterwards  made 
the  marriage  settlement.  By  this  mortgage,  which  was  not  produced  on 
the  former  ejectment,  all  deeds  were  granted  ;  and  it  contained  a  general 
declaration  of  trust  of  all  terms  for  the  mortgagee ;  and  it  appeared  that 
the  assignment  of  the  term  in  1779  was  delivered  over  to  Markwick,  and 
was  contained  in  a  schedule  of  title-deeds,  made  at  the  time  of  the  mort- 
gage, and  signed  by  Markwick;  and  also,  that  by  a  deed  in  1819,  New- 
man the  trustee  of  the  1000  years'  term,  declared  that  he  would  stand 


172  USES  AND  TRUSTS. 

(H)  Of  the  Cases  out  of  the  Statute.     {Attendant  Terms.) 

possessed  of  it  in  trust  for  Markwick,  to  secure  the  mortgage  money. 
The  learned  judge  said  the  facts  were  very  different  from  those  proved  on 
the  former  trial.  Here  the  deeds  were  handed  over  to  the  mortgagee  be- 
fore the  settlement  and  conveyance,  which  accounted  for  the  term  not 
being  mentioned  in  those  securities :  and  the  circumstance  of  the  deed 
having  been  scheduled  and  handed  over  to  Markwick,  showed  that  the 
term  had  not  been  surrendered  ;  and  under  his  direction  the  jury  found 
that  the  term  was  subsisting  and  reserved  any  question  of  law.  On  a  mo- 
tion for  a  new  trial,  the  Chief  Baron  said  he  did  not  think  the  doctrine  of 
presumption  a  correct  doctrine.  It  was  a  very  serious  point ;  and  of  late 
the  doctrine  had  been  carried  to  a  very  frightful  extent.  The  court  gave 
(he  defendant  leave  to  state  a  case  for  argument  on  another  question  ;  but 
the  point  as  to  the  surrender  of  the  term  was  put  at  rest ;  and  the  suit  was 
afterwards  compromised  to  the  advantage  of  the  Newmans. 

Doe  v.  Putland,  Sugden  Ven.  &  P.  421,  (6th  edit.) 

Where  a  term  was  created  in  1711  for  raising  portions,  and  there  was 
no  evidence  of  the  payment  of  the  portions,  and  a  settlement  of  the  estate 
took  place  in  1744,  containing  a  covenant  that  it  was  free  from  encum- 
brances, and  it  did  not  appear  that  an  assignment  had  ever  been  made, 
Sir  John  Leach,  V.  C,  held,  that  a  surrender  might  be  presumed  ;  and 
that  in  matters  of  presumption  the  court  would  bind  a  purchaser,  where  it 
could  give  a  clear  direction  to  a  jury  in  favour  of  the  fact. 

Emery  v.  Grocock,  G  Madd.  54;  and  see  Ex  parte  Holman,  Sugden  Ven.  &  P.  447, 
(8th  edit.) 

It  has  been  decided  that,  to  protect  a  purchaser  against  dower,  it  is  ne- 
cessary to  take  an  actual  assignment  of  the  term  to  a  trustee  for  him  ;  but 
this  appears  to  be  rather  an  excepted  case. 

Maundrell  v.  Maundrell,  10  Ves.  259.|| 

The  entailing  of  a  term  is  not  within  the  statute  de  donis  condit.,  for  that 
statute  extends  only  to  estates  of  inheritance,  and  not  to  chattels,  which  the 
rules  of  the  common  law  have  carried  into  another  channel. 

Cas.  of  Perp.  3,  11. 

And  therefore  in  this  case  the  trustee  and  tenant  in  tail  may  dispose  of 
it  without  a  fine  or  recovery  ;  and  this,  upon  valuable  consideration,  will 
bind  the  issue;  because,  since  the  Chancery  are  not  bound  by  the  statute, 
they  are  at  liberty  to  direct  the  rules  of  equity,  and  it  is  not  equity  to  set 
up  the  trust  to  the  issue  when  the  ancestor  has  received  for  it  a  valuable 
consideration. 

Cas.  of  Perp.  3:  Gilb.  Law  of  Uses,  164. 

It  will  likewise  be  assets  to  pay  intestates'  debts,  for  all  chattels  of 
intestates  are  assets  at  common  law  ;  and  it  is  not  equity  to  direct  it  other- 
wise. 

Cas.  of  Perp.  3;  Gilb.  164.  [A  term  to  attend  the  inheritance  is  real  assets  in  the 
hands  of  the  heir;  for  the  statute  of  frauds  having  made  a  trust  in  fee  assets  in  the 
hands  of  the  heir,  the  term  which  follows  the  inheritance,  and  which  is  subject  to  all 
charges  which  affect  the  inheritance,  must  be  so  also.  Attorney-General  v.  Sir  G. 
Sandys,  Ilardr.  489;  Willoughby  v.  Willoughby,  1  Term  R.  766.] 

But,  if  the  inheritance  of  a  use  be  entailed,  the  alienation  of  tenant  in 
tail  will  not  devest  it  out  of  the  issue  ;  for  it  is  within  the  intent  of  the 
statute  de  donis,  which  says,  that  if  an  estate  be  thus  limited,  the  donee 
shall  not  alien  to  prejudice  his  issue  ;  and  the  Chancery  interpreting  men's 
contracts,  is  bound  by  the  intent  of  an  act  of  parliament. 

Gilb.  Law  of  Uses,  165;  ||Co.  Lit.  20.|| 


USES  AND  TRUSTS.  173 

(H)  Of  the  Cases  out  of  the  Statute. 

If  a  term  be  given  to  A  in  trust  for  B  in  tail,  with  remainder  over, 
attendant  on  an  inheritance,  and  A  surrender  to  13,  this  shall  not  destroy 
the  remainder ;  for  though  the  surrender  destroys  the  estate  at  law,  yet  the 
trust  remains  in  equity,  if  the  party  had  notice. 

Gilb.  Law  of  Uses,  1G5. 

But  in  case  A  or  B  had  aliened  upon  valuable  consideration,  without 
notice,  this  would  have  destroyed  the  equity  of  the  issue  and  the  remain- 
der-man. 

Gilb.  Law  of  Uses,  1G5. 

2.  Of  Terms  in  Gross. 

Concerning  terms  in  gross  much  hath  been  said  already  ;  it  only  remains 
to  add,  that 

If  a  lease  be  limited  in  trust,  and  the  trustee  renew  the  lease,  it  shall  be 
to  the  benefit  of  cestui  que  trust ;  for  if  the  trustee  lake  on  him  the  trust,  he 
takes  upon  him  to  act  for  the  benefit  of  the  party  to  whom  the  advantage 
of  the  term  was  originally  designed. 

1  Ch.  Cas.  190,  Holt  v.  Holt;  ||Keech  v.  Sandford,  Sel.  Chan.  Ca.  CI;  Abney  v. 
Miller,  2  Atk.  593;  Edwards  v.  Lewis,  3  Atk.  538;  James  v.  Dean,  11  Ves.  383; 
15  Ves.  236.  So,  if  a  mortgagee  renew  a  lease,  it  inures  to  the  benefit  of  the  mort- 
gagor, 2  Freem.  13.  If  partners  hold  a  lease,  and  one  obtain  a  renewal,  both  shall  have 
the' benefit  of  it,  10  Ves.  29;  and  the  rule  is  the  same  as  to  joint  lessees.  Palmer  v. 
Young,  1  Vern.  276;  and  see  Gilb.  on  Uses  by  Sugden,  360,  nota.\\ 

3.  Where  Lands  are  limited  to  Trustees  to  pay  over  the  Rents  and  Pmfits. 

|  Where  something  is  to  be  done  by  the  trustees,  which  makes  it  neces- 
sary for  them  to  have  the  legal  estate,  such  as  payment  of  the  rents  and 
profits  to  another's  separate  use,  or  of  the  debts  of  the  testator,  or  to  pay 
rates  and  taxes  and  keep  the  premises  in  repair,  or  to  make  a  conveyance, 
or  the  like,  the  legal  estate  is  vested  in  them,  and  the  grantee  or  devisee 
has  only  a  trust  estate. 

2  Saun.  11,  n.  17,  by  Serj.  Williams  ;  3  Bos.  &  Pul.  178;  7  Ves.  J.  201.} 

If  lands  are  devised  to  trustees  and  their  heirs,  in  trust  for  a  feme  covert, 
and  that  the  trustees  shall  from  time  to  time  pay  and  dispose  of  the  rents 
and  profits  to  the  said  feme  covert,  or  to  such  persons  as  she,  whether  sole 
or  covert,  shall  appoint,  and  that  her  husband  shall  have  no  benefit  thereof; 
and  as  to  the  inheritance,  in  trust  to  such  persons  as  she  by  will,  or  other 
writings  under  her  hand,  shall  appoint ;  and  for  want  of  such  appointment, 
to  her  and  her  heirs ;  this  shall  be  a  trust,  and  not  a  use  executed  by  the 
statute. 

1  Vern.  415,  Nevil  v.  Saunders;  /SM'Cartee  v.  Orphan  Asylum  Society,  9  Cowen, 
437,  acc.$ 

But,  where  a  man  devised  the  rents  and  profits  of  certain  lands  to  T  B 
the  wife  of  W  B  during  her  natural  life,  to  be  paid  by  his  executors,  into 
her  own  hands,  without  the  intermeddling  of  her  husband,  and  after  her 
decease  he  devised  them  to  others ;  it  was  held  by  Rokeby  and  Eyre, 
Justices,  that  the  lands  themselves  belonged  to  the  wife,  against  Holt, 
C.  J.,  who  held  strongly,  that  the  executors  were  only  trustees  for  the 
wife. 

1  Salk.  228,  South  v.  Alleine;  Comb.  375,  S.  C;  and  5  Mod.  63,  by  the  name  of 
Bush  v.  Allen.  Adjudged  by  two  justices  against  the  opinion  of  Holt,  C.  J. ;  but  the 
reporters  differ  as  to  the  opinion  of  the  Chief  Justice.  {This  case  was  overruled  in 
Harton  v.  Harton.  7  Term,  652.} 

p2 


174  USES  AND  TRUSTS. 

(H)  Of  the  Cases  out  of  the  Statute. 

Likewise  where  lands  were  devised  to  trustees  and  their  heirs,  in  trust 
to  pay  several  legacies  and  annuities,  and  to  pay  the  surplus  of  the  rents 
and  profits  to  a  married  woman,  during  her  life,  for  her  separate  use,  or  as 
she  should  direct ;  and  after  her  death  the  trustees  to  stand  seised  to  the 
use  of  the  heirs  of  her  body,  with  remainders  over ;  the  question  was, 
Whether  this  devise  to  pay  the  surplus  of  the  rents  and  profits  to  the  wife, 
was  such  a  use  or  trust  as  was  executed  by  the  27  H.  8  ;  for  if  it  was,  then 
it  was  urged,  that  she,  being  tenant  for  life,  the  limitation  after  to  the  heirs 
of  her  body  being  coupled  with  it,  gave  her  an  estate-tail,  according  to 
Shelly's  case,  1  Rep. ;  but,  if  it  did  not,  then  the  eldest  son  was  to  take 
as  a  purchaser.  It  was  held  by  the  court,  that  she  had  only  a  trust  for 
life,  and,  consequently,  the  heirs  of  her  body  must  take  by  purchase ;  and 
the  rather  in  this  case,  because  it  was  limited  to  the  heirs  of  her  body  seve- 
rally and  successively,  as  they  should  be  in  seniority  of  age  and  priority 
of  birth,  and  the  heirs  of  their  respective  bodies  issuing.  And  a  difference 
was  taken  between  this  case  and  that  of  Broughton  and  Langley,  2  Salk., 
for  there  it  was  to  permit  A  to  receive  the  rents  and  profits  for  life  ;  but 
here  it  is  a  trust  in  the  trustees  to  pay  over  the  rents  and  profits  to  such 
and  such  persons  ;  and  therefore  the  estate  must  remain  in  them  to  answer 
these  trusts ;  otherwise  she  must  be  the  trustee,  contrary  to  the  express 
words  of  the  will. 

1  Cas.  Eq.  Abr.  383;  Jones  v.  The  Lord  Say  and  Seal,  [3  Bro.  P.  C.  458,  S.  C] 

But,  if  lands  are  devised  to  trustees  and  their  heirs,  on  trust  to  permit 
A  to  take  the  profits  for  his  life,  and  after  the  trustees  to  stand  seised  to 
the  use  of  the  heirs  of  the  body  of  A,  A  has  an  estate-tail  executed  in 
him  ;  for  this  being  a  plain  trust  at  common  law,  what  is  so,  must  be  ex- 
ecuted by  the  statute,  which  mentions  the  word  trust  as  well  as  use. 

2  Salk.  079,  Broughton  v.  Langley.  And  per  Holt,  C.  J.,  the  same  point  cont.  in 
the  case  of  Burchett  v.  Durdant,  2  Vent.  312,  is  not  law. 

[A  testator  devised  lands  to  trustees  upon  trust,  that  they,  their  heirs  and 
assigns,  should  yearly,  by  equal  quarterly  payments,  by  and  out  of  the 
rents  and  profits  of  the  premises,  after  deducting  rates,  taxes,  repairs,  and 
expenses,  pay  such  clear  sum  as  should  then  remain  to  his  brother  C  S, 
and  his  assigns,  during  his  natural  life,  and  afi er  his  decease  to  the  use  and 
behoof  of  the  heirs  male  of  the  body  of  the  said  C  S  lawfully  to  be  begot- 
ten, as  they  should  be  in  priority  of  birth  ;  and  in  default  of  such  issue, 
remainder  over.  Eyre,  B.,  and  Master  Holford,  thought  that  the  estate 
for  life  was  executed  in  C  S ;  but  Master  Hett  differed.  And  upon  a  re- 
hearing Lord  Chancellor  Thurlow  expressed  his  opinion,  that  the  trustees 
being  to  pay  the  taxes  and  repairs,  they  must  have  an  interest  in  the  pre- 
mises ;  and  therefore  that  the  legal  estate  for  the  life  of  C  S  was  in  them ; 
and  that  C  S  had  only  an  equitable  estate  for  life,  and  the  subsequent  estate 
being  executed  could  not  unite  ;  and  of  course  that  a  recovery  suffered  by 
C  S  was  void. 

Shapland  v.  Smith,  1  Bro.  Ch.  R.  75. 

Again,  lands  were  devised  to  trustees  and  their  heirs,  upon  trust  to 
stand  seised  thereof  during  the  natural  life  of  testator's  son  J  S,  to  such 
use  and  behoof  as  after  mentioned,  viz.,  that  the  trustees  should  yearly 
and  every  year,  during  the  natural  life  of  the  said  J  S,  take  and  receive 
the  rents,  issues,  and  yearly  profits  of  the  premises  ;  and  the  testator  or- 
dered, that  such  rents,  issues,  and  yearly  profits  should  be  applied  for  the 


USES  AND  TRUSTS.  175 

(H)  Of  the  Cases  out  of  the  Statute. 

subsistence  and  maintenance  of  the  said  J  S  during  his  natural  life  ;  and 
immediately  from  and  after  his  decease  he  devised  the  same  premises  unto 
the  heirs  of  the  said  J  S  lawfully  to  be  begotten,  and  for  default  of  such 
issue,  then  to  his  own  right  heirs.  The  court  held,  that  the  use  was  not 
executed  in  the  testator's  son,  but  in  the  trustees  during  his  life,  from  the 
nature  of  the  trust  to  receive  and  pay  over  the  profits,  and  the  application 
directed  for  the  subsistence  and  maintenance  of  the  son,  by  which  the  tes- 
tator seemed  to  invest  the  trustees  with  some  degree  of  discretionary  power 
in  that  respect.  And  there  being  nothing  in  the  nature  of  the  trust  to  pre- 
vent the  limitation  to  the  heir  of  his  body  from  being  a  use  executed,  they 
held  the  two  limitations  did  not  unite  so  as  to  give  J  S  an  estate-tail. 

Silvester  v.  Wilson,  2  Term  It    414.]    |jSee  Kenrick  v.  Beauclerk,  3  Bos.  &  Pul. 
178;  Tenny  v.  Moody,  3  Bingh.  3;  Houston  v.  Hughes,  6  Barn.  &  C.  403.|j 

||So,  where  a  devise  was  to  trustees  and  their  heirs,  upon  trust  to  permit 
a  married  woman  to  receive  the  rents  and  profits  during  her  life,  for  her 
own  sole  and  separate  use,  notwithstanding  her  coverture,  and  without 
being  in  anywise  subject  to  the  debts  or  control  of  her  then  or  after-taken 
husband,  and  her  receipt  alone  to  be  a  sufficient  discharge  with  remainder 
over,  it  was  held,  that  the  legal  estate  was  vested  in  the  trustees;  for  it 
being  the  intention  of  the  testator  to  secure  to  the  wife  a  separate  allow- 
ance, free  from  the  control  of  her  husband,  it  was  essentially  necessary 
that  the  trustees  should  take  the  estate  with  the  use  executed  in  order  to 
effectuate  that  intention. 

Harton  v.  Harton,  7  Term  R.  G52;  and  see  Doe  v.  Simpson,  5  East,  1G2;  Robinson 
v.  Grey,  9  East,  1. 

In  general  the  distinction  is,  that  where  the  limitation  to  trustees  and 
their  heirs  is  in  trust  to  receive  the  rents  and  profits  and  pay  them  over  to  A 
for  life,  this  use  to  A  is  not  executed  by  the  statute,  but  the  legal  estate  is 
vested  in  the  trustees,  to  enable  them  to  perform  the  will ;  but  where  the 
limitation  is  to  trustees  and  their  heirs  in  trust,  to  permit  and  suffer  A  to 
receive  the  rents  and  profits  for  his  life,  the  use  is  executed  in  A,  unless  it 
be  necessary  the  use  should  be  executed  in  the  trustees,  to  enable  them  to 
perform  the  trust,  as  in  the  case  of  Harton  v.  Harton,  suprh. 

2  Will.  Saund.  11  d. 

Where  the  devise  was  to  the  trustees  and  their  heirs,  in  trust  to  pay 
unto,  or  permit  and  suffer  the  testator's  niece  to  have,  receive,  and  take 
the  rents  and  profits  for  her  life  ;  it  was  held,  that  the  use  was  executed  in 
the  niece,  because  the  words  to  permit,  §*c.,  came  last :  and  in  a  will,  the 
last  words  shall  prevail. 

Doe  dem.  Leicester  v. ,  2  Taunt.  109. 

Where  something  is  to  be  done  by  the  trustees  which  makes  it  neces- 
sary for  them  to  have  the  legal  estate,  such  as  payment  of  the  rents  and 
profits  to  another's  separate  use,  or  of  the  debts  of  the  testator,  or  to  pay 
rates  and  taxes,  and  keep  the  premises  in  repair,  or  the  like,  the  legal 
estate  is  vested  in  them,  and  the  grantee  or  devisee  has  only  a  trust-estate. 

Somerville  v.  Lethbridge,  6  Term  R.  213;  Keene  v.  Deardon,  8  East,  248  ;  Wright 
v.  Smith,  12  East,  455;  Gregory  v.  Henderson,  4  Taunt.  772;  Murthwaite  v.  Bar- 
nard, 2  Bro.  &B.  623. 

{A  devised  thus:  "  As  to  my  real  and  personal  estate,  subject  to  my 
debts  and  funeral  expenses,  I  give  and  devise  the  same  as  follows,  viz., 
my  real  estates,  and  also  my  personal  estate  unto  J  M  and  O  W  and  their 


176  USES  AND   TRUSTS. 

(I)  Of  resulting  Uses,  or  Uses  by  Implication. 

heirs  on  the  following  trusts,  viz.,  to  the  intent  that  they  dispose  of  my 
personal  estate  in  discharge  of  my  debts,  funeral  expenses,  and  such 
legacies  as  I  may  direct ;  and  as  to  my  real  estates,  subject  to  my  debts 
and  such  charges  as  I  may  make,  I  give  and  devise  the  same  to  R  P  for 
life."  It  was  held  that  under  this  devise  the  legal  estate  in  the  realty 
vested  in  R  P  for  his  life,  and  J  M  and  0  W  took  no  estate  therein.  For 
unless  it  appeared  manifestly  that  the  testator  intended  that  the  trustees 
should  be  active  in  paying  the  debts,  the  legal  estate  would  not  vest  in 
them.  And  as  to  the  real  estate,  he  did  not  direct  the  payment  to  be  made 
by  the  trustees,  but  only  devised  it  subject  to  his  debts. 
3  Bos.  &  Pul.  175,  Kenrick  v.  Lord  Beauclerk.} 

(I)  Of  resulting  Uses,  or  Uses  by  Implication. 

Here  it  is  to  be  premised  that  the  mere  alteration  of  possession  does 
not,  in  equity,  give  a  right,  but  it  shall  be  to  the  use  of  the  donor,  &c, 
unless  the  use  is  expressed,  or  there  is  a  valuable  consideration.     Thus, 

i|  Resulting  uses  are  expressly  excepted  out  of  the  Statute  of  Frauds,  which  requires 
declarations  of  trusts  to  be  in  writing.  29  Car.  2,  c.  3,  §  7,  8.  But  for  this  exception 
there  could  have  been  no  resulting  use  upon  a  fine,  feoffment,  or  recovery,  though  made 
without  consideration.  But  as  a  use  only  results  by  presumption  of  law,  it  may  be 
rebutted  by  even  a  parol  declaration  in  favour  of  the  person  to  whom  the  assurance  is 
made.     See  Gilb.  by  Sugden,  118.|| 

If  a  man  makes  a  feoffment  without  consideration,  and  expresses  no 
use,  the  feoffment  is  intended  by  the  law  to  be  to  the  use  of  the  feoffor 
and  his  heirs. 

Bro.  Feoff,  al  Uses,  pi.  32.  In  this  case  the  law  makes  not  any  consideration,  be- 
cause the  feoffee  shall  not  hold  of  the  feoffor,  &c,  but  of  him  of  whom  the  feoffor 
held  :  and  this  by  the  statute  of  quia  emptores,  &c.     Dy.  14G  b,  pi.  71,  S.  P.,  Arg.   in 

case  of  Villers  v.  Beaumont. But  before  the  statute  of  quia  emptores  terrarum,  if 

a  man  made  a  deed  of  feoffment  without  any  consideration  or  cause,  the  feoffee  should 
have  had  this  to  his  own  use,  because  there  was  tenure  between  feoffor  and  feoffee. 
Dy.  146  b,  pi.  71,  Villers  v.  Beaumont;  and  see  Barnard.  Chan.  R.  387,  Lloyd 
v.  Spillit. 

But,  if  one,  without  any  consideration,  enfeoffs  another  by  deed,  to 
hold  to  the  feoffee  and  his  heirs  to  his  own  use,  and  the  feoffee  suffers  the 
feoffor  to  occupy  the  land  several  years,  yet  the  right  is  in  the  feoffee  ;  be- 
cause express  use  is  contained  in  the  deed,  which  is  sufficient  without  other 
consideration.  The  same  law  is,  when  a  feoffment  is  made  to  the  use  of 
a  stranger  and  his  heirs. 

And.  37,  pi.  95,  Anon.  There  is  a  difference  between  raising  uses  by  fine,  feoff- 
ment, or  other  conveyance,  which  operates  by  transmutation  of  possession,  and  uses 
raised  by  covenant;  for  upon  the  first,  if  no  uses  were  expressed,  it  is  equity  that 
assigns  the  feoffor  to  have  the  use;  for  by  the  law  the  feoffor  has  parted  with  all  his 
interest ;  but,  where  he  expresses  uses,  there  can  be  no  equity  in  giving  him  the  use 
against  his  own  will ;  and  there  can  be  no  presumption  that  the  conveyance  was  to  the 
use  of  the  feofibr  against  his  own  declaration.  But  in  case  of  a  covenant,  it  is  equity 
that  must  give  a  use,  for  the  person  can  have  no  right  by  law  ;  therefore,  in  such  case 
there  can  be  no  use  without  a  consideration  ;  for  there  is  no  equity  that  there  should. 
Gilb.  Law  of  Uses,  &c,  222,  223. 

That  which  cannot  vest  in  him  to  whom  it  is  limited,  shall  return  to  the 
feoffor ;  as,  if  I  make  a  feoffment  in  fee  to  the  use  of  myself  for  life,  and 
after  to  the  use  of  my  second  wife,  all  the  fee  is  now  in  me  ;  and  when  I 
take  a  second  wife,  then  the  feoffees  shall  be  seised  to  the  use  of  such  wife 
in  remainder  for  her  life;  per  Manwood,  J. 

2  Le.  19,  pi.  25,  in  Brent's  case. 


USES   AND   TRUSTS.  177 

(I)  Of  resulting  Uses,  or  Uses  by  Implication. 

Likewise,  if  one  seised  of  land  of  the  part  of  his  mother  makes  feoffment 
in  fee  without  consideration,  he  shall  be  seised  as  he  was  before,  viz.,  of 
the  part  of  the  mother. 

2  Rep.  58  a,  Beckwith's  case. 

In  like  manner,  if  a  man  suffers  a  common  recovery,  or  levies  a  fine  (a) 

of  land,  and  limits  no  use,  this  shall  be  to  the  use  of  him  who  suffers  the 

recovery  or  levies  the  fine. 

Godb.  180,  Bury  v.  Taylor.  Where  one  seised  in  tail  suffers  a  recovery,  and  de- 
clares no  use,  the  use  results  to  the  tenant  in  tail,  and  lie  becomes  seised  in  fee  by  vir- 
tue of  the  recovery,  because  the  recoveror  is  tenant  in  foe-simple,  and  then  no  uses  are 
declared  of  that  recovery;  and  where  no  consideration  appears  from  the  recoveror,  the 
recovery  can  be  to  no  other  purpose  than  to  dock  the  entail.  Gilb.  Law  of  Uses,  61. 
[(«)  But  there  is  a  difference  between  a  fine  or  recovery  as  to  the  operation  on  the  de- 
scent. If  tenant  in  tail  by  descent  ex  parte  maternd  suffer  a  recovery,  in  that  case,  it  is 
true,  the  estate  will  continue  notwithstanding  the  recovery  in  the  same  line,  and  de- 
scend to  the  heirs  ex  parte  maternd  ,•  but  if  tenant  in  tail  by  purchase,  with  a  reversion  in 
fee  by  descent,  both  ex  parte  maternd,  suffer  a  recovery,  he  must  take  the  resulting  fee 
as  a  purchaser.  For  the  estate  that  passes  by  the  recovery  is  the  estate-tail,  the  old  es- 
tate-tail, now  considered  as  a  fee:  the  party  comes  in  in  continuance  of  that  estate-tail ; 
which,  being  by  purchase,  must  of  course  descend  to  the  heir  at  law.  But  it  is  other- 
wise, where  tenant  in  tail,  with  remainder  to  himself  in  fee,  levies  a  fine;  for  the  fine 
extinguishes  the  estate-tail,  and  passes  a  base  or  qualified  fee;  and  that  fee  becomes 
merged  in  the  other  fee;  and  the  reversion  being  so  let  in,  the  estate  continues  in  the 
same  line.  Martin  v.  Tregonwell,  2  Stra.  1 179  ;  1  Wils.  2,  6G,  S.  C. ;  4  Bro.  P.  C. 
480,  S.  C;  {Willes,  444,  S.  C.;}  5  Term  R.  107,  S.  C;  Roe  v.  Baldwere,  5  Term 
R.  104;  Symonds  v.  Cudmore,  1  t-'alk.  338;  Carth.  258,  S.  C;  Skin.  339,  S.  C; 
1  Show.  370;  4  Mod.  1,  S.  C.j 

Likewise,  if  two  join  in  a  common  recovery  where  one  has  nothing  in 
the  land,  and  no  use  is  limited  upon  it,  this  shall  be  to  the  use  of  him  only 
who  had  the  interest  in  the  land,  and  no  use  shall  arise  to  the  stranger. 

2  Roll.  Abr.  789. 

Also,  if  A,  tenant  for  life,  and  B  in  reversion  or  remainder,  levy  a  fine, 
generally,  the  use  shall  be  to  A  for  life,  the  reversion  or  remainder  to  B  in 
fee ;  for  each  grants  that  which  he  lawfully  may,  and  each  shall  have  the 
use  which  the  law  vests  in  them  according  to  the  estate  which  they  convey 
over. 

2  Rep.  58  a,  Beckwith's  case. 

So,  if  there  are  two  joint-tenants,  the  one  for  life,  and  the  other  in  fee, 
and  they  levy  a  fine  without  declaring  any  use,  the  use  shall  be  to  them  of 
the  same  estate  as  they  had  before  in  the  land. 

2  Rep.  58  a,  Beckwith's  case. 

[Where  a  person  seised  in  fee  makes  a  feoffment  in  fee  without  valuable 
consideration  to  divers  particular  uses,  so  much  of  the  uses  as  he  disposes 
not  of  is  in  him  as  his  ancient  use  in  point  of  reverter.  Therefore,  where 
A,  seised  in  fee,  covenanted  to  stand  seised  to  the  use  of  his  heirs  male  be- 
gotten or  to  be  begotten  on  the  body  of  his  second  wife,  it  was  upon  this 
principle  holden  by  Hale,  C.  J.,  and  two  other  judges,  that  A  took  an 
estate  for  his  own  life  by  implication. 

Co.  Lit.  23  a;  Pibus  v.  Mitford,  1  Vent.  372. 

So,  where  the  immediate  use  is  limited  away  for  years  only,  and  no  use 
limited  of  the  freehold  till  the  grantor's  death,  the  use  of  the  freehold  shall 
in  that  case  result  to  the  grantor,  and  he  shall  take  an  estate  for  life  by  im- 
plication. As,  where  an  estate  was  conveyed  by  A  to  the  use  of  trustees 
for  seventy  years,  if  A  should  so  long  live,  remainder  to  trustees  for  3000 

Vol.  X.— 23 


178  USES  AND  TRUSTS. 

(I)  Of  resulting  Uses,  or  Uses  by  Implication. 

years,  and  from  and  after  the  death  of  A,  to  B  his  son  for  life ;  it  was  object- 
ed, that  the  limitation  to  B  together  with  the  remainders  over  were  void, 
beino-  an  estate  of  freehold  to  commence  in  futuro ;  for  the  first  freehold 
estate  was  limited  to  B,  which  was  not  to  arise  until  the  death  of  A,  and  no 
estate  for  life  was  limited  to  A  unless  an  eslate  for  life  should  be  supposed 
to  result  to  him.  After  solemn  argument  upon  the  point,  and  a  case  stated 
to  the  judges,  it  was  decreed,  that  an  estate  for  life  resulted  to  A,  which 
supported  the  limitation  over. 

Penhay  v.  Hurrell,  2  Vern.  370. 

In  a  subsequent  case,  where  the  use  was  limited  to  the  grantor  himself 
for  ninety-nine  years,  remainder  to  the  use  of  the  trustees  for  twenty-five 
years,  remainder  to  (the  use  of)  the  heirs  male  of  his  own  body,  remainder  to 
his  own  right  heirs  ;  the  court  held  the  limitation  to  the  heirs  male  of  the 
body  to  be  void,  because  there  was  no  preceding  freehold  limited  to  sup- 
port it,  and  that  it  should  not  be  implied  contrary  to  the  intent  of  the  con- 
veyance ;  that  there  the  estate  took  effect  by  transmutation  of  possession 
out  of  the  seisin  of  the  trustees,  and  not  like  Fenwick  (should  be  Pibus) 
and  Mitford's  case,  where  the  owner  covenanted  to  stand  seised  to  the  use  of 
the  heirs  of  his  body  ;  and  Powell,  J.,  held,  that  even  in  that  case,  if  there 
had  been  an  express  estate  limited  to  the  covenantor,  it  had  been  different. 

Adams  v.  Savage, 2  Salk.  679;  and  vide  Dyer,  111,  in  margin. 

And  so  where  A  by  marriage  settlement  conveyed  certain  lands  to  the 
use  of  himself  for  ninety-nine  years,  if  he  so  long  lived,  and  after  to  the  use 
of  trustees  for  two  hundred  years,  remainder  to  the  use  of  the  heirs  male 
of  his  oion  body,  remainder  to  his  own  right  heirs ;  upon  a  case  referred  to 
the  judges  of  C.  B.  from  the  Court  of  Chancery,  they  held  the  limitation  to 
the  heirs  male  of  the  body  of  A,  void,  no  freehold  being  limited  to  any  per- 
son precedent  to  that  estate  ;  and  that  no  estate  of  freehold  could  result  to 
A,  for  his  life  by  implication,  because  another  estate,  viz.,  for  ninety-nine 
years,  if,  &c,  was  expressly  limited  to  him,  which  would  be  inconsistent 
with  a  freehold  by  implication. 

Rawley  v.  Holland,  Vin.  v.  22,  p.  189,  c.  11;  2  Eq.  Abr.753.  |jSeeGoodtitlev.Bur- 
tonshaw,  app.  to  Butler's  edit,  of  Fearne,  No.  1 ;  Jackson  v.  Jackson,  Fitzo-.  146.  The 
case  in  the  text,  and  that  of  Adams  v.  Savage,  supru,  settled  the  rule,  that  a  contingent 
use,  like  a  contingent  remainder,  must  have  a  preceding  estate  to  support  it;  and  that 
where  a  use  is  limited  by  way  of  remainder,  it  cannot  take  effect  as  a  springing  use; 
and  see  Sir  E.  Sugden's  note,  Gilb  on  U.  167,  Sand,  on  U.  142,  (4th edit.)!] 

And  where  the  use  was  expressly  limited  away  during  the  life  of  the 
grantor  instead  of  for  years  only,  it  has  been  held,  that  the  freehold  could 
not  result  to  him,  so  as  to  unite  with  the  subsequent  limitation  to  the  heirs 
of  his  body. 

Thus,  E  C,  on  his  intended  marriage,  settled  lands  by  deed  and  fine,  to 
the  use  of  himself  and  his  heirs  till  the  marriage,  and  afterwards  to  the  use 
of  his  wife  for  life,  remainder  to  the  use  of  the  cognisees  in  the  fine,  and 
their  heirs,  during  the  life  of  E  C,  upon  trust  to  permit  him  to  receive  the 
rents  and  profits,  remainder  to  the  sons  of  the  marriage  successively  in  tail 
male,  and  for  want  of  such  issue  to  the  heirs  of  the  body  of  the  said  E  C, 
and  for  want  of  such  issue,  to  the  said  E  C  and  his  heirs.  It  was  agreed 
that  the  case  differed  from  that  of  Fenwick  v.  Mitford,  for  there,  no  use  at 
all  was  limited  for  the  life  of  the  feoffor,  which  left  a  vacancy  the  law 
would  supply  by  implication ;  but  in  the  principal  case,  there  being  an  ex- 
press estate  limited  to  the  cognisees  during  the  life  of  E  C,  there  was  no 

g2 


USES  AND  TRUSTS.  179 

(I)  Of  resulting  Uses,  or  Uses  by  Implication. 

room  left  for  any  implication.  Besides  that  in  Mitford's  case,  it  was  held 
to  be  no  other  than  the  old  reversion  subsisting  in  the  feoffor ;  but  the  limi- 
tation in  the  principal  case  being  of  a  new  estate,  viz.,  an  estate-tail,  could 
not  be  any  part  of  the  old  estate,  which  was  a  fee-simple.  And  though  it 
was  contended,  that  the  law  would  imply  an  estate  for  life  in  E  C,  interme- 
diate between  the  estate  of  the  cognisees  and  that  to  the  first  son  of  the 
marriage,  because  it  was  possible  that  the  cognisees  might  forfeit  or  sur- 
render ;  yet  the  whole  court  was  clearly  of  opinion,  that  the  limitation  to 
the  heirs  of  the  body  of  E  C  was  a  contingent  remainder,  and  such  as  the 
heir  would  take  by  purchase,  and  not  by  descent ;  and  that  the  case  differed 
from  that  of  Fenwick  v.  Mitford  for  the  reasons  before  given.  And  judg- 
ment was  given  accordingly. 

Tippin  v.  Cosin,  Garth.  272;  4  Mod.  380;  Moor,  284. 

So,  where  A  made  a  settlement  to  the  use  of  himself  for  ninety-nine 
years,  if  he  should  so  long  live,  remainder  to  the  trustees  and  their  heirs 
during  his  life,  Sfc,  remainder  to  the  use  of  the  heirs  of  his  body  ;  remainder 
to  himself  in  fee  ;  Lord  Chancellor  Cowperheld  this  limitation  to  the  heirs 
of  the  body  to  be  plainly  a  contingent  remainder. 

1  P.  W.  387,  Else  v.  Osborne. 

And  in  a  case  where  A,  having  two  sons  C  and  D,  covenanted  to  stand 
seised  to  the  use  of  C  and  the  heirs  male  of  his  body  on  M  his  wife  to  be 
begotten,  and  for  want  of  such  issue  to  the  heirs  male  o/7ns(A's)  ownbody, 
and  for  want  of  such  issue  to  his  own  right  heirs  for  ever;  C  the  eldest 
son  died,  leaving  issue  one  son  and  several  daughters,  A  died,  and  then 
the  son  of  C  died  without  issue ;  the  court  held  the  limitation  to  the 
heirs  of  the  body  of  A  to  be  words  of  purchase,  and  to  vest  in  the  son  of  C 
upon  the  death  of  A  as  heir  male  of  his  body  by  purchase;  and  that  on  the 
death  of  C's  son  it  descended  to  his  uncle  D  as  heir  male  of  the  body  of 
A  per  formam  doni;  and  not  by  purchase  as  heir  male  of  the  body  of  A,  he 
not  being  heir,  as  his  nieces  were  living.  They  allowed  no  estate  for  life 
in  A  by  implication,  and  seemed  to  doubt  the  doctrine  in  the  case  of  Pibus 
and  Mitford.  But  this  difference  is  observable  between  the  two  cases ;  in 
that  of  Pibus  and  Mitford,  the  covenantor  had  not  limited  any  use  at  all 
during  his  own  life;  whereas,  in  Southcot  v.  Stowell,  the  covenantor  had 
limited  a  present  use  to  his  son  C  in  tail. 

Southcot  v.  Stowell,  1  Mod.  226,  237;  2  Mod.  207,  211;  vide  Mandevile's  case, 
Co.  Lit.  26  b;  Fearne's  C.  R. 

Archdale  Palmer  and  his  son  John  Palmer,  upon  the  marriage  of  the  son 
with  A,  settled  certain  lands  to  the  use  of  Archdale  and  his  heirs  until  the 
marriage  ;  and  afterwards,  as  to  part  of  the  lands  to  the  use  of  John  Palmer 
for  life,  and  after  intermediate  remainders,  (to  the  use  of  his  wife  for  life 
and  of  his  sons  by  her  or  any  other  woman  successively  in  tail-male,)  to 
the  use  of  the  heirs  male  of  the  body  of  the  said  Archdale  Palmer,  remainder 
to  the  use  of  the  heirs  of  the  body  of  John  Palmer,  remainder  to  the  use  of 
John  Palmer,  his  heirs  and  assigns ;  and  as  to  the  residue  of  the  lands  to 
the  use  of  Archdale  for  life,  and  after  several  intermediate  limitations,  (to 
the  use  of  John  for  life  and  to  his  wife,  in  part,  for  life,  and  of  the  sons  of 
the  marriage  successively  in  tail-male,)  to  the  use  of  John  and  the  heirs 
male  of  his  body,  remainder  to  the  use  of  Archdale,  his  heirs  and  assigns. 
John  died  without  issue  male  in  the  lifetime  of  his  father,  leaving  A  his 
widow  and  one  daughter  by  her,  named  Ann.     Archdale  afterwards,  by 


180  USES  AND   TRUSTS. 

(I)  Of  resulting  Uses,  or  Uses  by  Implication. 

his  will,  noticing  that  by  the  death  of  his  eldest  son  John  without  issue 
male,  that  part  of  his  estate  then  in  possession  was,  by  the  said  marriage 
settlement,  vested  in  him  in  fee-simple,  devised  the  said  estate  to  his  son 
William  Palmer  for  life,  with  remainder  to  his  sons  successively  in  tail- 
male,  and  for  want  of  such  issue,  to  the  heirs  male  of  his  (testator's)  body 
begotten,  and  for  want  of  such  issue  to  his  own  right  heirs  for  ever. 

Wills  et  al.  v.  Palmer,  5  Burr.  2615;  2  Black.  687. 

Archdale  died,  leaving  his  said  grand-daughter  Ann  his  heir  at  law,  and 
his  son  William  Palmer,  who  (as  well  as  John  his  deceased  brother)  was 
the  testator's  issue  by  a  first  wife,  and  also  leaving  Henry,  an  eldest  son, 
and  several  other  children  by  his  second  wife.  Afterwards  William  Pal- 
mer, who  at  his  father's  death  was  heir  male  of  his  body,  died,  leaving  a 
son,  who  died  leaving  a  son  Henry  John,  who  died  an  infant  without  issue; 
and  no  recovery  was  suffered  by  William  or  his  son.  Upon  the  death  of 
Henry  John,  Henry,  the  eldest  son  and  heir  male  of  the  body  of  Archdale 
by  his  second  wife,  entered  upon  that  part  of  the  estate  which  was  by 
Archdale's  will  devised  to  the  heirs  m.ale  of  his  body.  And  afterwards, 
upon  the  death  of  Ann  the  widow  of  John,  Henry  took  possession,  as  heir 
male  of  the  body  of  Archdale,  of  the  lands  which  she  had  held  for  her  life 
under  the  settlement.  Upon  a  bill  filed  by  Ann  the  daughter  of  John,  and 
heir  general  of  Archdale  and  her  husband,  claiming  in  her  right,  as  heir  at 
law  and  heir  of  the  body  of  John  Palmer,  to  be  entitled,  on  failure  of  issue 
male  of  the  whole  blood,  to  that  part  of  the  estate  which  was  limited  by 
the  settlement  to  John  Palmer  in  fee  ;  and  also  claiming  in  her  right,  as 
heir  at  law  of  Archdale,  to  be  entitled  to  the  estates  of  which  the  reversion 
in  fee  was  limited  to  him  by  the  settlement,  as  not  devised  by  his  will ;  a 
case  was  made  for  the  opinion  of  the  judges  of  the  King's  Bench,  upon  the 
question,  Whether  any  and  what  estate  passed  by  the  settlement  to  the  de- 
fendant Henry  Palmer,  as  heir  male  of  the  body  of  Archdale  Palmer  the 
grantor1)  And  whether  any  and  what  estate  passed  to  the  said  defendant 
Henry  Palmer  as  heir  male  of  the  body  of  the  said  Archdale  Palmer,  by 
his  will  ?  Upon  which  the  judges  certified  they  were  of  opinion,  that  the 
defendant  Henry  Palmer,  by  the  settlement,  took  by  descent  as  heir  male  of 
the  body  of  Archdale  Palmer  the  grantor.  That  in  case  a  third  person  had 
been  the  grantor,  they  should  have  thought  that  Henry  Palmer  would  have 
taken  an  estate  in  tail-male  by  purchase,  under  the  description  of  heir  male 
of  Archdale  Palmer.  And  that  they  were  of  opinion,  that  an  estate  in  tail- 
male  passed  to  the  defendant  Henry  Palmer,  as  heir  male  of  the  body  of 
Archdale  Palmer  by  his  will. 

No  estate  for  life  can  arise  by  implication,  or  by  way  of  resulting  use,  to 
a  person  who  was  not  the  owner  of  the  estate  granted.  As,  where  husband 
and  wife  levied  a  fine  of  the  wife's  land  to  the  use  of  the  heirs  of  the  body 
of  the  husband  on  the  wife  begotten,  and  for  default  of  such  issue  to  the  use 
of  the  right  heirs  of  the  husband ;  they  had  issue  ;  the  wife  died,  then  the 
issue  died,  and  then  the  husband  died  ;  and  the  question  was,  Whether 
the  heir  of  the  husband  or  the  heir  of  the  wife  should  have  the  lands  ?  And 
the  court  held,  that  no  estate  for  life  could  arise  to  the  husband  by  implica- 
tion, because  the  estate  was  the  wife's,  to  which  he  was  a  stranger ;  there- 
fore the  limitation  to  the  heirs  of  the  husband,  &c.,  was  void,  for  wrant  of 
a  preceding  freehold  to  support  it.     An  implied  estate  in  the  wife  for  her 


USES  AND  TRUSTS.  181 

(I)  Of  resulting  Uses,  or  Uses  by  Implication. 

life  would  not  do,  as  she  died  before  her  husband,  and,  consequently,  before 
the  remainder  to  his  heir  could  commence. 

2  Salk.  675,  Davies  v.  Speed,  Show.  Cas.  Pari.  104. 

So,  where  a  marriage  settlement  was  made  by  a  third  person  to  the  use 
of  A  the  husband  for  ninety-nine  years,  remainder  to  trustees  during  his  life, 
to  support  contingent  remainders,  remainder  to  the  wife  for  life,  remainder 
to  the  first,  &c,  son  of  the  marriage,  remainder  to  the  heirs  of  the  body  of 
A,  remainder  to  his  right  heirs ;  here  the  freehold  during  A's  life  being 
limited  to  trustees,  and  he  taking  only  a  term  of  years,  and  the  estate  not 
moving  from  him,  (for  if  it  had,  the  limitation  to  his  right  heirs  would  have 
been  the  old  reversion,)  the  remainder  to  his  heirs  was  a  contingent  re- 
mainder. 

Vide  I  P.  W.  359,  Sir  T.  Tippin's  case  there  cited;  and  vide  Jenk.  Cent.  248, 
c.  18. 

And  where  lands  were  devised  to  C  for  the  term  of  ninety  years  if  he 
should  so  long  live,  and  afterwards  to  the  heirs  of  C's  body,  it  was  held, 
that  it  vested  in  the  heir  by  purchase. 

Harris  v.  Barnes,  4  Burr.  2157. 

Indeed,  in  a  case  where  the  testator  devised  in  remainder  (after  limita- 
tions to  his  brother  W  and  his  heirs  male)  to  the  heirs  male  of  his  brother 
N's  sons,  (who  then  had  two  sons  living,)  without  any  antecedent  devise 
to  those  sons  themselves,  and  by  a  schedule  annexed  to  the  will  and  referred 
to  in  it,  (which  the  special  verdict  found  to  be  part  of  the  will,)  purporting 
to  be  an  account  how  the  testator  had  disposed  of  his  estates  by  his  will, 
he  said,  and  for  want  of  his  brother  W's  having  sons,  then  to  his  brother 
N's  sons,  and  for  want  of  sons,  then  over :  Upon  the  question,  Whether  one 
of  the  sons  of  N  took  an  estate  for  life  or  in  tail  ?  the  Court  of  King's  Bench 
in  Ireland  held  he  took  only  for  life.  But  on  an  appeal  to  the  King's 
Bench  in  England,  Lord  Mansfield,  in  delivering  the  opinion  of  the  court, 
observed,  that  the  only  doubt  was,  whether  by  the  words  of  the  will  the 
sons  of  N  took  any  estate  by  implication ;  that  such  doubt  was  removed 
by  the  schedule,  which  expressly  gave  an  estate  to  the  sons  of  N;  and 
therefore  the  son  of  N  took  an  estate  for  life  by  implication  thus  explained, 
which  being  conjoined  with  the  estate  expressly  given  to  his  heirs  male  by 
the  will,  would  by  the  known  rule  of  law  give  him  an  estate  in  tail  male. 
But  this  case  turned  on  the  operation  of  the  schedule. 

Hayes  v.  Foorde,  2  Black.  R.  698. 

It  has  been  doubted,  Whether  there  can  be  a  resulting  use  on  the  con- 
veyance by  lease  and  release  ;  that  is  to  say,  if  a  bargain  and  sale  in  consi- 
deration of  money  is  made  to  J  S  for  a  year,  and  then  a  release  is  made  to 
him  in  fee,  without  any  further  consideration  or  declaration  of  the  use, 
whether  in  this  case  the  use  will  result  to  the  releasor. — Thus,  where  A 
brought  covenant  as  assignee  of  a  reversion,  and  showed  that  the  lessor, 
in  consideration  of  five  shillings,  bargained  and  sold  to  B  for  a  year,  and 
afterwards  released  to  him  and  his  heirs,  virtute  quorundam  indentur.  bar- 
ganice  ve?iditionis  et  relaxationis,  necnon  vigore  statuti  de  usibus,  §c,  he  was 
seised  in  fee  ;  it  was  objected,  that  the  use  must  be  intended  to  the  releasor 
and  his  heirs,  because  no  consideration  of  the  release,  nor  express  use,  ap- 
peared by  the  pleadings.  It  was  argued  in  this  case,  that  there  could  be 
no  resulting  use  on  a  lease  and  release  ;  that  nothing  passes  to  the  lessee 
in  possession,  but  by  way  of  enlargement  of  the  estate  of  such  lessee  ;  for 
it  does  not  operate  to  give  a  new  estate  of  the  reversion,  but  to  increase  the 

Q 


182  USES  AND  TRUSTS. 

(I)  Of  resulting  Uses,  or  Uses  by  Implication. 

estate  in  possession,  according  to  the  words  of  it :  so  it  does  not  work  by 
merger  of  the  first  interest,  but  by  enlarging  it :  that  if  the  release  inure 
only  to  enlarge  the  estate,  the  interest  enlarged  must  be  to  the  use  of  the 
lessee,  else  it  cannot  be  said  to  be  an  increase  of  it :  that  if  the  practice  had 
not  prevailed  to  the  contrary,  it  were  odd  to  limit  the  use  of  a  release  to  any 
but  the  lessee ;  for  which  reason  it  is,  that  we  find  it  expressed  in  the  clause 
in  the  lease,  on  which  the  lessor  intends  to  build  his  release,  that  the  intent 
of  the  lease  was  to  pass  an  estate  by  release  upon  it,  for  the  use  of  a  third 
person  :  that  it  would  be  absurd  to  say,  that  my  conveyance  should  have 
no  other  operation  but  to  extinguish  or  merge  the  estate,  which  the  grantee 
has  already,  in  order  to  have  brought  it  back  to  me  ;  and  what  need  could 
there  be  of  such  a  way  ?  if  the  party  had  any  such  intent,  it  might  soon  be 
done  by  a  surrender :  that  if  it  had  been  expressed  in  the  deed  of  release, 
that  he  had  already  made  him  a  lease  for  years,  and  that  for  the  enlarge- 
ment of  that  estate  he  made  the  release,  there  could  be  no  doubt  but  that 
it  would  be  to  the  use  of  the  releasee ;  and  there  is  no  difference  between 
the  cases,  since  this  release,  in  its  own  nature,  inures  by  way  of  enlarge- 
ment ;  besides,  here  is  also  a  valuable  consideration ;  for  the  lease  and 
release  being  but  one  conveyance,  the  five  shillings,  expressed  to  be  the 
consideration  of  the  lease,  shall  extend  to  the  release  ;  and  also  the  accept- 
ance of  the  release  is  in  its  own  nature  a  consideration,  for  it  implies  an 
alteration  of  the  estate  of  the  lessee,  the  consent  to  which  is  a  consideration 
moving  from  the  lessee ;  and  the  only  motive  of  the  lessee's  parting  with 
the  old  estate  was  to  get.  a  new  one.  On  the  other  side  it  was  urged,  that 
before  the  statute  of  27  H.  8,  c.  10,  if  A  made  a  feoffment,  levied  a  fine, 
or  suffered  a  recovery  without  a  use  declared,  and  without  any  considera- 
tion, the  feoffee,  conusee,  and  recoveror  stood  seised  of  those  lands  to  the 
use  of  A  :  that  since  the  statute  the  law  as  to  this  matter  is  not  altered;  for 
the  statute  only  intended  to  execute  the  use  to  the  possession,  and  by  that 
means  to  destroy  the  use,  but  it  did  not  intend  to  make  any  other  thing  pass 
by  the  conveyance  than  that  which  passed  before  ;  that  there  was  the  same 
reason  the  use  should  not  pass  in  a  release  without  consideration  or  express 
declaration,  as  in  a  feoffment,  fine,  and  recovery ;  because  the  use  and 
estate  are  distinct,  and  though  the  estate  passes,  yet  the  use  does  not,  with- 
out a  consideration  or  express  limitation  of  it ;  and  they  are  as  much  distinct 
things  in  a  release  as  in  any  other  conveyance  :  and  the  precedents  are,  that 
when  a  release  is  pleaded,  there  always  mention  is  made  of  a  consideration 
or  express  use.  2  Saund.  11,  277  ;  2  Ventr.  120;  Co.  Entr.  220,  264, 
474.  To  the  objection  that  this  release  inured  by  way  of  enlargement  of 
the  lease  for  a  year,  and  therefore  would  participate  of  the  consideration 
of  it,  and  that  the  lease  and  release  made  but  one  conveyance,  it  was 
answered,  that  though  the  lease  and  release  made  but  one  conveyance  as 
to  the  passing  of  the  fee,  yet  they  were  in  truth  distinct  conveyances,  and 
had  different  operations,  the  one  by  the  statute  of  uses,  and  the  other  by 
the  common  law  :  that  as  to  what  was  said,  that  the  release  inures  by  way 
of  enlargement  of  the  estnte  of  the  lessee,  it  is  true  that  it  gives  him  a 
greater  estate  than  he  had  before,  but  that  notwithstanding  it  destroyed  the 
estate  for  years  by  merger,  and  it  cannot  participate  of  the  consideration 
which  is  contained  in  the  lease,  which  is  perfectly  distinct.  However, 
Holt,  C.  J.,  without  considering  the  operation  of  the  conveyance,  and 
admitting  there  might  be  a  resulting  use  on  it,  held,  that  the  manner  of 
pleading  the  release,  as  above,  to  the  releasee   was  good ;  and  that  if  a 


USES  AND   TRUSTS.  183 

(I)  Of  resulting  Uses,  or  Uses  by  Implication. 

feoffment  be  pleaded  in  the  same  manner,  without  showing  the  use  or  a 
consideration,  with  an  averment  virtute  cujus  the  feoffee  was  seised,  the 
use  shall  be  intended  to  be  to  the  feoffee :  that  that  was  the  form  of  plead- 
ing before  the  statute  ;  and  the  statute  has  not  altered,  but  rather  confirmed, 
this  manner  of  pleading. 

Sand,  on  Uses,  480;  Shortridge  v.  Lamplugh,  2  Salk.  678;  7  Mod.  71 ;  2  Lord 
Raym.  798;  1  Lutw.  351.  ||See  Sand,  on  Uses,  2,  CO— 70,  (4th  edit.);  Gilbert  by 
Sugden,  233.||     See  Sand.  95,  96,  485.] 

It  is  to  be  observed  likewise,  that  when  one  takes  a  feoffment,  having 
notice  of  the  several  uses  and  trusts,  there,  the  party  is  supposed  to  take  it 
under  those  uses  and  trusts ;  for  the  law  will  suppose  a  man's  actions  rather 
just  than  otherwise. 

Gilb.  Law  of  Uses,  7. 

Therefore,  if  a  feoffee  to  a  use  make  a  feoffment  in  fee  upon  a  valuable 
consideration  with  notice,  the  second  feoffees  shall  be  seised  to  the  former 
uses ;  for  the  consideration  imports  a  seisin  to  his  own  use,  the  notice  a 
seisin  to  the  former  uses:  and  where  the  act  is  capable  of  a  double  inter- 
pretation, that  must  be  taken  which  consists  most  with  equity. 

Gilb.  Law  of  Uses,  7.  The  reason  is,  for  that  it  argues  a  corrupt  conscience  to  bar- 
gain for  an  estate  which  the  purchaser  knows  to  be  another's  in  equity ;  therefore  as 
consideration  or  no  consideration  is  an  issue  at  law,  so  notice  or  no  notice  is  an  issue  in 
Chancery.  Lord  Bacon's  Read,  on  Stat,  of  Uses.  But  Qu.  If  the  use  is  expressed  to 
the  second  feoffee,  for  there  it  seems  notice  or  no  notice  is  immaterial.     1  And.  314. 

Likewise,  if  A  agrees  with  B  to  lease  Blackacre  to  him  for  certain  years, 
and  afterwards,  before  he  has  made  the  lease,  according  to  the  promise,  he 
enfeoffs  C  of  the  land  for  a  valuable  consideration,  C  having  notice  of  the 
promise  before  the  feoffment  made ;  C  shall  be  compelled  in  Chancery  to 
make  the  lease  to  B,  according  to  the  promise,  because  of  his  notice. 

2  Roll.  Abr.  781. 

But,  where  a  man  takes  upon  a  valuable  consideration  without  notice, 
there,  he  is  supposed  to  take  it  to  his  own  use,  for  otherwise  he  would  not 
have  given  an  equivalent. 

Therefore,  if  a  feoffment  be  made  with  consideration,  and  without  notice, 
the  feoffee  shall  be  seised  to  his  own  use,  for  here  the  act  is  capable  of  no 
other  construction. 

1  Rep.  122,  Chudleigh's  case.  ||This  is  the  rule  in  equity  at  this  day.  If  a  man 
purchases  from  another  bona  fide  for  a  valuable  consideration,  and  without  notice,  it  is 
unimportant  that  the  seller  was  merely  a  trustee.  As  to  what  amounts  to  notice  to  a 
purchaser,  see  Sugden's  Vend.  &  P.  742,  el  seq.  (8th  edit.)|| 

Also,  if  feoffee  in  use  makes  a  gift  in  tail,  the  donee  shall  be  seised  to 
his  own  use;  for  there  is  a  consideration,  viz.,  a  tenure  between  them,  un- 
less he  express  a  use  upon  the  gift,  or  in  the  gift ;  per  Brooke,  J. 

Bro.  F.  al  Uses,  pi.  10. 

If  the  feoffee  in  use  makes  a  lease  for  life,  he  shall  have  fealty  ;  for  this 
is  to  the  use  of  the  lessee,  if  a  use  be  not  expressly  reserved,  &c. ;  per 
Brooke,  J. 

Bro.  F.  al  Uses,  pi.  10. 

In  like  manner,  if  he  devises  by  testament,  the  devisee  shall  be  seised  to 
his  own  use,  unless  it  be  otherwise  expressed  ;  for  there  is  a  consideration 
implied. 

Bro.  F.  al  Uses,  pi.  10. 


184  USES  AND  TRUSTS. 

(K)  Of  second  or  shifting  Uses. 

So,  if  a  feoffment  be  made  to  A  to  enfeoff  B  to  the  use  of  C,  and  A  en- 
feoff B  without  limiting  any  use,  yet  it  shall  be  to  the  use  of  C. 

Noy,  19,  per  Popham,  C.  J.,  in  case  of  Yelverton  v.  Yelverton. 

(K)  Of  second  or  shifting  Uses. 

If  a  man  made  a  feoffment  in  fee  before  the  statute  of  uses,  27  H.  8,  c. 
10,  or  after  the  statute,  to  the  use  of  W  and  his  heirs  till  A  paid  40/.  to  the 
said  W,  and  then  to  the  use  of  the  said  A  and  his  heirs,  and  after  comes  the 
statute  of  uses  and  executes  the  estates  in  W,  and  after  A  pays  W  the  40/., 
there  A  is  seised  in  fee  if  he  enters,  by  several.  But  by  some,  A  shall  not 
be  seised  in  fee  by  the  said  payment,  unless  the  feoffees  enter;  qucere  hide. 
And  therefore  it  seems  to  be  the  surest  way  to  enter  in  the  name  of  the 
feoffees,  and  in  his  own  name,  and  then  the  one  way  or  the  other  the  entry 
shall  be  good,  and  it  shall  make  A  to  be  seised  in  fee :  and  therefore  a 
man  at  this  day  may  make  a  feoffment  to  uses,  and  the  use  shall  change 
from  one  to  another  by  act  ex  post  facto  by  circumstance,  as  well  as  it  should 
before  the  statute  27  H.  8,  of  uses. 

Bro.  F.  al  Uses,  pi.  30,  cites  6  E.  6. 

So,  if  I  limit  a  use  jointly  to  two  persons  not  in  esse,  and  the  one  comes 
to  be  in  esse,  he  shall  take  the  entire  use ;  and  yet  if  the  other  afterwards 
comes  in  esse,  he  shall  take  jointly  with  the  former. 

Ld.  Bacon  on  the  Statute  of  Uses,  351.  As,  if  I  make  feoffment  to  the  use  of  my 
wife  that  shall  he,  and  my  first  begotten  son  for  their  lives,  and  I  marry,  my  wife  takes 
the  whole  use;  and  if  1  afterwards  have  a  son,  he  takes  jointly  with  my  wife.  Lord 
Bacon  on  the  Statute  of  Uses,  351. 

Where  a  conveyance  was  made  by  fine  to  A  B  to  the  use  of  C  D  and  M 
his  wife  for  life,  and  the  longer  liver  of  them,  remainder  after  their  de- 
cease to  the  use  of  Ch  executors  for  six  months,  and  after  the  six  months 
ended,  to  the  use  of  E  and  F,  his  wife,  and  the  heirs  male  of  their  bodies, 
remainder  to  C  and  his  heirs,  provided  if  C  at  any  time  after  have  issue  of 
his  body,  or  any  wife  of  C  at  his  decease  be  enseint  with  any  issue  begot- 
ten by  C,  then  after  such  issue  had,  and  after  500/.  paid  to  G  or  tendered 
and  refused,  within  six  months  after  the  birth  of  such  issue,  then  the  use  of 
the  said  lands,  immediately  after  the  decease  of  the  said  C  D  and  M  the 
six  months  expired,  shall  be  to  C  and  the  heirs  of  his  body,  and  in  default 
of  such  issue,  to  the  right  heirs  of  the  said  CD;  M  dies,  and  C  marries 
N.  Per  Plowden  and  Dyer — Before  the  performance  of  the  contingent, 
C  has  no  larger  estate  than  he  had  before. 

Dy.  314,  pi.  9(5,  Anon. 

So,  where  A  made  a  feoffment  to  the  use  of  himself  for  life,  remainder 
to  his  wife  for  life,  remainder  to  his  right  heirs,  with  a  proviso  if  his  son 
interrupted  his  wife,  it  should  be  to  the  use  of  the  wife  and  her  heirs :  A 
made  a  lease  for  years,  to  begin  after  (a)  his  decease,  and  died  :  The  son 
disturbed  the  wife  ;  Resolved,  that  the  use  will  not  arise  to  give  the  wife 
the  fee. 

Cro.  Eliz.  766,  case  of  Wood  v.  Reynolds,  cites  it  as  the  case  of  Leigh  v.  Burton. 
And  Godfrey,  Arg.  said,  he  conceived  the  reason  thereof  to  be,  because  the  use  limited 
to  the  right  heirs  was  the  ancient  reversion,  and  no  new  estate,  and  a  condition  cannot 

be  annexed  thereto.     Ibid. Mo.  742,  pi.  1022.     Barton's  case  says,  it  was  to  begin 

after  the  (a)  wife's, decease.  Resolved,  by  Popham  and  Anderson,  C.  J.,  clearly,  that 
the  future  use  was  checked  by  the  lease,  and  never  shall  arise;  for  since  it  could  not 
arise  at  the  death  of  the  wife,  by  reason  of  the  lease  for  years,  it  is  destroyed  for  ever. 


USES  AND  TRUSTS.  185 

(K)  Of  second  or  shifting  Uses. 

Yet  rwta,  (says  the  reporter,)  that  the  lease  was  only  an  interessc  termini  all  the  time 
of  the  wife's  life,  and  the  disturbance  which  ought  to  raise  the  use  in  fee  to  the  wife, 

was  made  in  her  life,  before  the  commencement  of  the  lease. Gilb.  Law  of  Uses, 

&c,  138,  139,  cites  S.  C. ;  and  says,  the  wife  shall  not  have  the  reversion,  because 
the  lease  has  altered  it ;  for  there  is  the  same  estate  to  be  executed  in  the  wife  as 
was  in  being  at  the  disposition  of  the  particular  estate. 

Likewise,  where  A  bargained  and  sold  land  to  B  and  his  heirs  for  500/., 
upon  condition  that  if  A  paid  B  500/.  he  might  re-enter  and  be  seised  to  the 
use  of  himself  and  his  heirs,  until  he  attempt  to  alien  without  the  assent 
of  B,  and  then  to  the  use  of  B  and  his  heirs,  and  a  fine  was  levied  to  those 
uses :  A  paid  the  500/.  and  entered  ;  afterwards  A  aliened  to  J  S  without 
the  assent  of  B.  Per  Lord  C.  Egerton, — No  use  will  arise  to  B,  because 
B,  entering  for  the  condition  broken,  ought  to  be  in  of  the  old  use  and 
estate,  and  cannot  be  seised  to  any  other  use. 

Moor,  761,  pi.  1054,  in  Chancery,  Holloway  v.  Pollard. 

|| Provisoes  defeating  estates  actually  created  are  commonly  introduced 
in  settlements,  where  it  is  wished  that  on  accession  of  another  estate,  the 
one  settled  shall  go  over  to  another  branch  of  the  family,  and  the  validity 
of  such  provisoes  is  now  well  established. 

Thus,  Thomas  Heneage  devised  his  estate  to  trustees,  to  the  use  of  his 
son  G.  F.  Heneage  for  his  life,  remainder  to  the  use  of  trustees,  to  support 
contingent  remainders  during  the  life  of  the  said  G.  F.  H.,  and  to  permit 
G.  F.  H.  to  receive  the  rents  during  his  life,  remainder  to  the  first  and 
other  sons  of  G.  F.  H.  successively  in  tail-male,  remainder  to  devisor's 
son  J.  Heneage  for  life,  remainder  to  trustees,  &c,  remainder  to  J.  Hene- 
age's  sons  in  tail  successively,  remainder  to  the  third  and  other  sons  of 
the  devisor  in  tail,  with  an  ultimate  remainder  to  the  devisor's  right  heirs — 
Provide^,  that  in  case  it  should  happen  that  G.  F.  Heneage,  or  any  of 
his   sons,  should    ever   inherit    or  take   the  estate  of  testator's   brother, 
George  Heneage,  or  so  much  thereof  as  should  exceed  the  devised  estate 
by  100/.  per  ann.,  then  the  uses  and  estates  thereby  limited  in  favour  of 
G.  F.  Heneage,  or  any  son  of  his,  should  cease,  determine,  and  be  void ; 
and  in  such  case,  his  will  was,  that  the  next  in  remainder,  according  to 
the  uses  of  that  his  will,  should   succeed  to  and  enjoy  his   said   estate 
thereby  devised,  as  if  his  said  son  G.  F.  Heneage,  or  any  such  son  or  sons 
of  his,  was  or  were  respectively  dead.    On  the  testator's  death,  G.  F.  Hene- 
age entered  on  the  premises,  and  enjoyed  the  same  till  his  death  in  1782. 
George  Heneage,  the  devisor's  brother,   died  in  1753,   leaving  a  will, 
whereby  he  devised  his  estates  (exceeding  in  value  the  estates  devised  by 
Thomas  Heneage  by  100/.  and  upwards)  to  his  nephew,  G.  F.  Heneage, 
for  life,  with  remainder  to  his  first  and  other  sons  in  tail  ;  and  on  his  un- 
cle's death,  G.  F.  Heneage  entered  upon  the  estates  of  his  uncle,  and  en- 
joyed the  same  till  his  own  death  in  1782,  when  he  left  issue  the  defendant 
his  eldest  son,  and  the  lessor  of  the  plaintiff,  his  second  son.     At  the  time 
of  his  uncle's  death,  G.  F.  Heneage  had  no  son  ;  but  the  defendant  and 
the  lessor  of  the  plaintiff  were  afterwards  born.     Thomas  Heneage,  the 
son  of  the  testator  Thomas  Heneage,  died  unmarried,  and  without  issue, 
in  the  lifetime  of  George  Heneage  ;  and  the  devisor,  Thomas  Heneage, 
had  no  other  son.     The  ultimate  limitation  in  the  will  of  Thomas  Hene- 
age was  vested  in  G.  F.  Heneage,  as  heir  of  his  father,  Thomas  Heneage, 
at  the  death  of  George  Heneage  the  uncle.     On  the  death  of  G.  F.  Hene- 
age, the  defendant,  his  eldest  son,  took,  under  the  devise  in  G.  H's,  the 
Vol.  X.— 24  Q  2 


186  USES  AND  TRUSTS. 

(K)  Of  second  or  shifting  Uses. 

uncle's,  will,  an  estate  in  tail-male  in  his  uncle's  estates,  and  was  still  in  pos- 
session thereof.  Upon  the  death  of  G.  F.  Heneage,  the  defendant  as  his 
heir  also  entered  upon  the  premises  in  question,  and  was  still  in  possession 
thereof.  For  the  defendant,  it  was  contended,  that  G.  F.  Heneage  having 
had  no  son  at  the  time  of  his  uncle  George's  death,  when  he  became  enti- 
tled to  his  uncle's  estates,  there  was  no  person  then  m  esse  to  take  under  the 
contingent  use  limited  by  the  will  of  Thomas  Heneage,  and,  consequently, 
that  the  use  was  void,  and  the  defendant  was  entitled  as  heir  at  law  to  the 
devisor,  his  grandfather  ;  but  the  Court  of  King's  Bench  held,  that,  under 
the  limitation  to  trustees  to  preserve  contingent  remainders  during  the  life 
of  G.  F.  Heneage,  their  estate  continued  during  the  whole  life  of  G.  F. 
H.,  and,  consequently,  preserved  the  contingent  uses  to  his  son. 

Doe  dem.  Heneage  v.  Heneage,  4  Term  R.  13. 

In  the  above  case,  effect  was  given  to  the  limitation  to  trustees  during 
the  life  of  G.  F.  Heneage,  in  order  to  effectuate  the  clear  intention  of  the 
testator, — that  his  estate,  and  that  of  his  brother  George,  should  not  unite 
in  the  same  son  of  G.  F.  Heneage.  But  where  there  was  a  person  in  esse 
to  take  the  contingent  use  at  the  time  of  the  determination  of  the  particu- 
lar estate,  the  same  words  in  a  will  were  construed  not  to  give  the  trustees 
an  estate  during  the  whole  life  of  the  particular  devisee,  since  such  a  con- 
struction would,  in  that  case,  defeat  the  clear  intention  of  the  testator. 
The  case  was: — Sir  W.  Carr,  Bart.,  devised  estates  to  trustees  to  the  use 
of  his  grandson,  W.  Hay,  second  son  of  his  daughter  the  Countess  of  Er- 
roll,  for  life,  subject  to  the  provision  after  mentioned,  with  remainder  to 
trustees  during  the  life  of  W.  Hay  to  preserve  contingent  uses  thereafter 
limited,  but  to  permit  W.  Play  to  receive  the  rents  and  profits  during  his 
life,  remainder  to  the  use  of  the  first  son  of  the  body  of  W.  Hay,  and  then 
to  his  second,  third,  fourth  sons,  &c,  in  tail-male,  subject  to  the  provi- 
soes, &c. ;  and  in  default,  &c,  to  the  use  of  the  third,  fourth,  and  fifth, 
and  every  other  son  of  the  Countess  of  Erroll  in  tail-male,  subject  to  the 
provisoes,  &c. ;  and  in  default,  &c,  to  the  use  of  the  second  son  of  George 
Lord  Hay,  testator's  grandson,  and  the  heirs  male  of  his  body,  subject 
to  the  provisoes,  &c.  :  and  in  default,  &c,  to  the  use  of  the  third,  fourth, 
fifth,  and  other  sons,  of  the  said  George  Lord  Hay  in  tail-male,  subject, 
&c.  ;  and  in  default,  &c,  to  the  use  of  his  grand-daughter  Lady  Charlotte 
Hay  (afterwards  Lady  C.  Carr,)  for  life,  subject  to  the  provisoes,  &c, 
with  remainder  to  trustees,  to  preserve  contingent  remainders,  remainder 
to  the  first  son  of  Lady  C.  H's  body,  and  his  heirs  male,  &c,  subject  to 
the  provisoes,  &c. — Provided  that,  in  case  his  grandson  W.  Hay,  or  his  first 
or  any  other  son,  or  the  issue  male  of  their  bodies,  or  the  third  or  any  other 
son  of  Lady  Erroll,  or  other  issue,  or  the  second  or  any  other  son  of  G.  Lord 
H.j  or  their  issue,  or  his  grand-daughter  Lady  C.  H.  or  their  respective  first 
or  any  other  son,  or  the  issue  male  of  their  respective  bodies,  or  any  of  them, 
should  become  entitled  to  the  said  estates,  and  the  person  so  entitled 
should  afterwards  become  entitled  to  the  earldom  of  Erroll,  then,  and 
from  thenceforth,  the  use  and  estate  thereby  limited  to  such  person  so  be- 
coming entitled,  should  cease  and  be  void  as  if  such  person  were  dead 
without  issue  ;  and  the  estates  thereby  devised  should  go  and  remain  to 
the  use  of  the  person  next  in  remainder,  to  such  person  so  becoming  en- 
titled as  aforesaid.  At  the  decease  of  the  testator,  his  grandson  William 
Hay,  the  second  son  of  Lady  Erroll,  was  an  infant ;  but,  on  his  attaining 


USES   AND   TRUSTS.  187 

(L)  Of  the  Manner  of  pleading  Uses. 

twenty-three  years  of  age,  he  was  let  into  enjoyment  of  the  mansion-house 
and  estates  devised.  George  Lord  Hay,  the  eldest  son,  became,  at  his 
father's  death,  Earl  of  Erroll,  but  he  died  without  issue  ;  and  thereupon 
William  Hay  became,  and  then  was,  Earl  of  Erroll.  The  testator's  daugh- 
ter, the  Countess  of  Erroll,  having  no  other  issue  male  except  the  said 
William  Earl  of  Erroll,  the  defendant  Lady  Charlotte  Hay,  the  testator's 
grand-daughter,  named  in  the  will,  (who  had  intermarried  with  W.  Hol- 
well  Carr,  clerk,)  claimed  to  be  entitled  to  the  possession  of  the  estates,  as 
if  her  brother  William  Earl  of  Erroll  was  dead  without  issue  male  ;  and, 
on  her  death,  she  left  a  son,  the  present  plaintiff,  an  infant.  The  defend- 
ant, W.  Earl  of  E.,  insisted  that  the  estates  were  vested  in  the  trustees,  to 
preserve  contingent  remainders,  for  the  benefit  of  himself  during  his  life. 
For  the  plaintiff,  it  was  contended,  that,  on  the  event  which  had  happened, 
of  the  title  of  Earl  of  Erroll  devolving  upon  William  Hay,  the  plaintiff 
took  an  estate-tail  in  possession,  such  devolution  of  the  title  being,  by  the 
proviso  in  the  will,  equivalent  to  the  natural  death  of  William  Hay  with- 
out issue  male ;  and  that  though  the  estate  to  the  trustees  was  not,  in 
words,  made  subject  to  the  proviso,  it  must  be  so  in  effect ;  and  that  if 
W.  Hay's  life-estate  was  gone,  it  would  be  inconsistent  to  say,  that  the  per- 
mission to  the  trustees  to  let  him  take  the  rents  and  profits  during  his  life 
applied  to  the  case.  The  Court  of  King's  Bench,  on  a  case  sent  by  the 
Lord  Chancellor,  was  of  opinion,  that  the  plaintiff,  William  Holwell  Carr, 
was  entitled  to  an  estate  in  tail-male  in  the  premises. 

Carr  v.  Earl  of  Erroll,  6  East,  75 ;  and  see  Nicholls  v.  Sheffield,  2  Brown,  C.  C. 
215  ;  Stanley  v.  Stanley,  16  Ves.  494  ;  Gilb.  on  Uses,  by  Sugden,  153,  notd.  || 

(L)  Of  the  Manner  of  pleading  Uses. 

If  a  man  pleads  that  A,  B,  and  others  were  seised  to  his  use  in  fee,  this 
is  good  pleading,  without  showing  the  commencement  of  the  use. 

Bro.  Pleadings,  pi.  170,  cites  13  H.  7,  c.  18. 

But  it  is  otherwise,  where  he  says  that  they  were  seised  to  the  use  of 
him  and  the  heirs  of  his  body,  because  this  is  a  particular  estate. (a) 

Bro.  Pkudings,  pi.  170,  cites  13  H.  7,  c.  18.  |j(«)  That  the  commencement  of  estates- 
tail  and  all  particular  estates  must  be  shown  in  pleading,  unless  when  alleged  by  way 
of  inducement.     See  Co.  Lit.  303  b;  2  Salk.  562;  3  Wils.  72;  Rast.  Ent.  S56.|| 

If  a  man  makes  a  feoffment  in  fee  to  A  to  the  use  of  B,  B  may  plead 
this  feoffment,  and  show  that  J  S  disseised  him  without  laying  any  actual 
entry,  for  the  statute  executes  the  possession  in  him :  he  may  also  plead  it 
without  showing  any  agreement  thereto,  because  the  freehold  is  in  him, 
unless  he  disagree,  and  then  it  must  be  shown  on  the  other  side,  for  thereby 
the  freehold  is  immediately  out  of  him. 

Owen,  86,  Green  v.  Wiseman ;  Gilb.  Law  of  Uses,  81. 

But  in  trespass  he  must  show  an  actual  entry ;  for  this  action  is  grounded 
on  the  disturbance  of  his  possession,  or  the  violation  of  his  right,  by  taking 
the  actual  profits,  which  no  man  could  hinder  him  from,  or  disturb  him  in, 
till  he  shows  he  was  in  possession. 

Owen,  87,  Green  v.  Wiseman. 

If  a  man  pleads  that  he  bought  land  for  20/.,  without  showing  the  money 
paid,  or  a  day  alleged  for  the  payment  of  it,  this  is  good  ;  for  the  buying 
implies  payment  of  the  money ;  and  if  there  was  none  paid,  the  plaintiff 
may  reply,  that  he  did  not  buy,  &c. 

Bro.  F.  al  Uses,  338  b,  pi.  15. 


188  USES  AND   TRUSTS. 

Of  Trusts. 

In  debt  the  plaintiff  counted  upon  a  lease  for  years  made  by  his  father, 
rendering  rent.  The  defendant  said,  that  the  father  and  others  were  seised 
in  fee  to  the  use  of  the  father,  absque  hoc  that  the  reversion  descended  to 
the  plaintiff.  And  it  was  held  a  good  plea  to  the  count,  for  the  plaintiff 
ought  to  have  counted  specially  that  they  were  seised  to  the  use,  &c,  and 
that  the  father  leased,  and  because  he  did  not,  the  writ  and  count  shall 
abate;  per  Rede,  C.  J.,  and  Kingsmill,  J.;  former  Rede, — The  defend- 
ant may  say  that  the  father  had  nothing  at  the  time  of  the  demise,  and  then 
the  plaintiff  cannot  maintain  the  declaration  by  the  use,  but  it  is  a  depar- 
ture :  for  he  ou^ht  to  have  shown  it  at  first. 

Bro.  Count,  pi.  49,  cites  21  H.  7,  c.  25. 

The  tenant  of  the  land  cannot  plead  a  release  made  by  cestui  que  use  to 
the  feoffee,  without  showing  the  release. 

Bro.  Monstrans  de  faites,  &c,  pi.  Gl,  cites  14  H.  8,  c.  4. 

In  waste,  the  writ  set  forth  a  feoffment  to  several  persons  to  several  uses. 
After  verdict,  exception  was  taken  to  the  writ,  because  it  did  not  say  the 
feoffment  was  to  them  and  their  heirs,  without  which  there  could  be  no  in- 
heritance in  cestui  que  use,  and  so  no  disherison,  as  the  action  of  waste  im- 
ports. But  the  plaintiff  had  judgment,  because  all  the  forms  of  the  writs 
had  been  so  since  the  making  of  the  statute ;  and  the  declaration  laid  the 
seisin  in  fee,  as  it  must ;  and  yet  the  plaintiff  might  have  had  a  general 
writ,  and  declared  specially. 

Hob.  81,  pi.  112,  Sheat  v.  Oxenbridge. 

We  proceed  now  to  treat  more  particularly  of  the  latter  branch  of  this 
title,  and  to  consider  the  law  respecting 


/SPART  II.-OF*/   TRUSTS. 

A  trust  is  a  right  to  receive  the  profits  of  the  land,  and  to  dispose  of 
the  land  in  equity ;  per  Pemberton,  Jirg.  Mod.  17,  in  the  case  of  Smith  v. 
Wheeler.  And  holding  the  possession  and  disposing  thereof  at  his  will 
and  pleasure,  and  making  leases  thereof  when  the  legal  estate  is  in  others, 
are  signs  of  a  trust. 

1  Mod.  27,  Smith  v.  Wheeler;  Ibid.  33.  Arg.  in  S.  C;  Chan.  R.  52,  Earl  of  New- 
castle v.  Earl  of  Suffolk.  0  As  to  what  will  constitute  a  trust,  see  Foy  v.  Foy,  2  Hayw. 
131  ;  Elliott  v.  Armstrong:,  2  Blackf.  198  ;  Fisher  v.  Fields,  10  Johns.  494*;  Benzien 
v.  Lenoir,  1  Car.  Law  Repos.  508;  Taylor  v.  Mavrant,  4  Desaus.  505;  Chamberlain 
v.  Thompson,  10  Conn.  213;  Dey  v.  Dunham,  2  Johns.  Ch.  182;  S.  C.15  Johns.  555; 
Rutted™  v.  Smith,  1  M'Cord,  Ch.  119;  Letcher  v.  Letcher's  heirs,  4  J.  J.  Marsh.  593; 
Rutherford  v.  Ruff,  4  Desaus.  350;  Smith  v.  Executor  of  Smith,  1  M'Cord,  Ch.  134; 
Armstrong  v.  Campbell,  3  Vera;.  201  ;  Donalds  v.  Plumb,  8  Conn.  447;  Page  v.  Broom, 
4  Russ.  6;  S.  C.  2  Russ.  &  Ry.  214  ;  Wright  v.  Atkyns,  Turn.  &  Russ.  157;  Mac- 
cubbin  v.  Cromwell's  ex'ors,  7  Gill  &  Johns.  157;  Rainsford  v.  Rainsford,  Rice's  Eq. 
R.  343;  De  Bevoiso  v.  Sandford,  1  Doff.  192;  Sheldon  v.  Sheldon,  13  Johns.  220; 
Johnson  v.  Fleet,  14  Wend.  170;  Jackson  v.  Moore,  0  Cowen,  70fi ;  Ingles  v.  The 
Trustees  of  the  Sailors'  Snug  Harbour,  3  Pet.  119;  Bull  v.  Bull,  8  Conn.  47  ;  Cham- 
berlain v.  Thompson,  10  Honn.  243;  Homer  v.  The  Savings  Bank,  7  Conn.  478; 
Cowles  v.  Whitman.  10  Conn.  121  ;  Dean  v.  Dean,  fi  Conn.  285;  Peebles  v.  Read- 
ing, 8  S.  &  R.  192  ;  Graham  v.  Donaldson,  5  Watts,  451  ;  Hoge  v.  Hoge,  1  Watts,  163; 
Smiley  v.  Dixon,  1  Penns.  441. 5/ 


USES  AND   TRUSTS.  189 

Of  Trusts. 

Trusts  are  of  the  same  nature  now  that  uses  were  at  common  law.     Arg. 
Allen,  15,  in  case  of  The  King  v.  Holland. 

Allen,  15,  The  King  v.  Holland  ;  Abr.  Eq.  Case,  220,  S.  P.  Symson  v.  Turner.. 


S.  P.  Arg.  Vent.  130,  in  case  of  Smith  v.  Wheeler. A  trust  is  but  a  new  name  given 

to  a  use,  and  invented  to  defraud   the  statute  of  uses.*     Arg.  Sti.  40,  in  case  of  The 
King  v.  Holland.     /3  Fisher  v.  Fields,  10  Johns.  495.J? 

*  It  has  already  been  observed,  that  now  the  use  by  the  way  of  trust  (which  were 
one  and  the  same  before  the  statute)  remains  separately  in  some  persons,  and  the  pos- 
session separately  in  others,  as  it  did  before  the  statute,  and  are  not  brought  together 
but  by  decree  in  Chancery,  or  the  voluntary  conveyance  of  the  possessor  of  the  land  to 
cestui  que  trust. 

[The  legislature,  by  the  stat.  of  27  H.  8,  c.  10,  are  thought  by  Lord 
Coke  (1  Rep.  125)  to  have  intended  to  abolish  uses  and  trusts,  though 
this  opinion  is  controverted  by  Lord  Bacon  in  his  Readings  on  the  Statute. 
If  such  was  the  intention,  courts  of  law,  by  too  strict  a  construction  of  its 
provisions,  defeated  it,  and  rendered  it  necessary  for  courts  of  equity  to 
retain  that  jurisdiction,  of  which  a  more  liberal  interpretation  of  the  statute 
by  courts  of  law  would  probably  have  deprived  them ;  so  that,  as  Lord 
Hardwicke  observed,  "  A  statute  made  upon  great  consideration,  and  in- 
troduced in  the  most  solemn  manner,  by  a  strict  construction,  has  had  no 
other  effect  than  to  add  at  most  three  words  to  a  conveyance."  Courts  of 
equity  have,  however,  in  the  exercise  of  this  jurisdiction,  wisely  avoided, 
in  a  great  degree,  those  mischiefs  which  made  uses  intolerable.  They 
now  consider  a  trust-estate  (either  when  expressly  declared  or  resulting  by 
necessary  implication)  as  equivalent  to  the  legal  ownership,  governed  by 
the  same  rules  of  property,  and  liable  to  the  same  charges  in  equity,  except 
dower,  to  which  the  other  is  subject  at  law :  and  by  a  long  series  of  uni- 
form determinations  for  a  century  past,  with  some  assistance  from  the  legis- 
lature, they  have  raised  a  new  system  of  rational  jurisprudence,  by  which 
trusts  are  made  to  answer  in  general  all  the  beneficial  ends  of  uses,  without 
their  inconvenience  or  frauds. 

2  Fonbl.  E.  Tr.  15  ;  1  Atk.  591 ;  2  Black.  Com.  337.] 

0 Trust-estates  are  subject  to  the  same  rules  as  legal  estates,  in  every 
case,  dower  excepted. 

Danforth  v.  Lowry,  3  Hayw.  68.tf 

But  for  the  better  understanding  of  this  head,  we  shall  divide  it  into  the 
following  branches;  and  consider, 

(A)  By  what  general  Rules  Trusts  are  governed. 

(B)  What  amounts  to  a  Declaration  of  Trust,  and  when  a  Trust  shall  be  raised. 

(C)  What  shall  be  deemed  a  resulting  Trust,  or  Trust  by  Implication. 

(D)  What  shall  be  deemed  an  Advancement,  and  what  a  Trust. 

(E)  What  Acts  of  a  Trustee  shall  be  a  Breach  of  Trust,  &c,  or  shall  be  deemed  to 

alter  or  vary  the  Nature  of  it. 

(F)  What  Acts  of  the  Trustee  jointly  with  Cestui  que  Trust,  or  by  Cestui  que  Trust 

only,  shall  defeat  the  Trust,  or  destroy  contingent  Remainders. 

(G)  In  what  Cases  Equity  will  decree  Trustees  to  join  in  a  Recovery,  &c,  with 

Cestui  que  Trust. 
(H)  When  a  Trust  is  to  be  executed,  what  Estate  or  Interest  is  to  be  conveyed,  and 

to  whom. 
(I)  Trustee  in  what  Cases  favoured,  and  in  what  Cases  decreed  to  account. 
(K)  How  far  Trustees  are  answerable  for  each  other. 


190  USES  AND  TRUSTS. 

(A)  By  what  general  Rules  Trusts  are  governed. 
(L)  In  what  Cases  Trustees  shall  give  Security,  and  whenhe  discharged  or  removed 
(M)  The  Power  of  Cestui  que  Trust. 
(N)  Of  Forfeitures  by  Cestui  que  Trust. 
,5(0)  Compensation  to  Trustees. 
(P)  Of  Suits  in  Equity  and  Actions  at  law  by  and  against  Trustees  and  Cestuis  que 

Trust. 
(Q)  Miscellaneous  Cases.51 


(A)  By  what  general  Rules  Trusts  are  governed. 

Trusts  and  legal  estates  are  to  be  governed  by  the  same  rules ;  and  this  is 
a  maxim  which  has  universally  prevailed.  It  is  so  in  the  rules  of  descent, 
as  in  gavelkind,  and  borough  English  lands ;  there  is  a  possessio  fratris  of 
a  trust,  as  well  as  of  a  legal  estate.  The  like  rules  in  limitations,  and  also 
in  barring  eiitails  of  trusts,  as  of  legal  estates;  per  the  Master  of  the  Rolls, 
who  said  he  thought  there  was  no  exception  out  of  this  general  rule,  nor  is 
there  any  reason  that  there  should  ;  and  that  it  would  be  impossible  to  fix 
boundaries,  and  show  how  far,  and  no  farther,  it  ought  to  go ;  and  that 
perhaps  in  early  times  the  necessity  of  keeping  thereto  was  not  seen,  or 
thoroughly  considered. 

2  P.  Wms.  R.  G45,  Sutton  v.  Sutton;  /SDanforth  v.  Lowry,  3  Hayw.  68;  Cudworth 
v.  Hall's  Adm'r.,  3  Desaus.  261 ;  Fisher  v.  Field,  10  Johns.  494.j>  ||See  Cholmondeley 
v.  Clinton,  2  Jac.  &  Walk.  I,  189.|| 

0  A  trust  is  now  what  a  use  was  before  the  statute  of  uses.  It  is  an  in- 
terest resting  in  equity  and  conscience,  and  the  same  rules  apply  to  trusts 
in  Chancery  as  were  formerly  applied  to  uses. 

Fisher  v.  Field,  10  Johns.  494.g/ 

[But  there  is  a  difference  between  trusts  executed,  and  trusts  executory; 
for  though  the  former  are  construed  in  the  same  manner  as  legal  estates ; 
yet  it  is  otherwise  with  the  latter ;  for  they  are  so  moulded  by  the  courts 
of  equity,  as  best  to  answer  the  intent  of  the  parties  creating  them.  How- 
ever, it  must  be  acknowledged,  that  even  with  these,  where  it  does  not 
violate  such  intent,  the  same  rule  of  construction  is  applied  as  to  legal 
estates. 

Lord  Glenorchy  v.  Bosville,  Ca.  temp.  Talb.  19  ;  Garth  v.  Baldwin,  2  Ves.  655; 
Roberts  v.  Dixwell,  1  Atk.  608.] 

A  being  seised  in  fee  of  certain  lands  devised  them  to  trustees  in  fee,  in 
trust  to  pay  his  debts,  and  to  convey  the  surplus  to  his  daughters  equally: 
the  younger  married  and  died,  leaving  an  infant  son,  and  her  husband 
surviving :  the  eldest  daughter  brought  a  bill  for  a  partition  ;  and  the  only 
question  was,  Whether  the  husband  of  the  younger  daughter  should  have 
an  estate  for  life  conveyed  to  him  as  tenant  by  the  curtesy  ?  Upon  which 
it  was  decreed  by  Lord  Chancellor,  that  trust  estates  were  to  be  governed 
bv  the  same  rules,  and  were  within  the  same  reason,  as  legal  estates ;  and 
as  the  husband  should  have  been  tenant  by  the  curtesy,  had  it  been  a  legal 
estate,  so  should  he  be  of  this  trust  estate ;  and  if  there  were  not  the  same 
rules  of  property  in  all  courts,  all  things  would  be,  as  it  were,  at  sea,  and 
under  the  greatest  uncertainty. 

1  P.  Wins.  108,  Watts  v.  Ball.  [So,  Chaplin  v.  Chaplin,  3  P.  Wms.  234;  Cash- 
borne  v.  Scarfe,  1  Atk.  603;    Burgess  v.  Wheate,  1  Black.  R.  138,  161.]     ||And  the 


USES  AND  TRUSTS.  191 

(A)  By  what  general  Rules  Trusts  are  governed. 

husband  shall  have  his  curtesy  of  money  agreed  to  be  laid  out  in  land,  because  in  equity 
it  is  considered  as  land.  Sweetapple  v.  JBindon,  2  Vern.  53G  ;  Cunningham  v.  Moody, 
)  Ves.  174.|| 

[But,  where  a  father  devised  lands  to  trustees,  in  trust  to  apply  the  rents 
and  profits  to  the  sole  and  separate  use  of  the  daughter  during  her  life,  not 
subject  to  the  debts  and  control  of  her  husband,  and  also  to  permit  his 
daughter  by  deed  or  writing  to  devise  the  lands  to  such  persons  as  she 
should  think  proper ;  Lord  Hardwicke  held,  that  the  husband  should  not 
be  tenant  by  the  curtesy  of  the  trust ;  because,  though  the  daughter  had 
the  benefit  of  a  trust  of  inheritance,  yet  she  had  neither  a  legal  nor  equitable 
seisin  during  the  coverture. 
Hearle  v.  Greenbank,  3  Atk.  715;  \\sed  vide  1  Atk.  G07;  2  Bro.  C.  C.  51. || 
It  is  established,  that  there  shall  not  be  tenant  in  dower  of  a  trust. 

3  P.  Wms.  234;  2  Atk.  525;  Ca.  temp.  Talb.  138;  @  Danforth  v.  Lowry,  3  Hayw. 
68;  Derush  v.  Brown,  8  Ohio,  412.^ 

It  hath  also  been  holden,  that  a  trust  is  not  liable  to  escheat  to  the  lord 
in  consequence  of  attainder  or  want  of  heirs  ;  because  the  trust  could  never 
be  intended  for  his  benefit. 

Burgess  v.  Wheat,  1  Black.  R.  123.  ||See  Gilb.  on  Uses  by  Sugden,  p.  17, 
note  (10). || 

\  A  copyhold  is  devised  to  A  and  his  heirs  in  trust  for  B  and  his  heirs,  B 
dies  without  heirs.  Chancery  will  not  compel  the  lord  to  admit  the  heir 
of  the  trustee,  who  is  only  entitled  to  a  legal  estate  without  any  beneficial 
interest :  Chancery  has  not  jurisdiction  to  support  the  legal  title  by  com- 
pelling the  lord  to  admit. 

3  Ves.  J.  752,  Williams  v.  Lord  Lonsdale. 

Bank  stock  was  purchased  in  England  by  the  government  of  Maryland 
before  the  American  war,  and  vested  in  trustees  in  England,  for  the  dis- 
charge of  certain  bills  of  credit.  The  last  trustees  appointed  were  Han- 
bury,  Russel,  and  Grove.  In  1779,  the  government  of  the  state  of  Mary- 
land passed  an  act  for  calling  in  the  bills  of  credit ;  and  the  mode  proposed 
was  by  giving  to  the  holders  bills  of  exchange  drawn  upon  the  trustees  in 
London  ;  and  it  was  provided  that  those  trustees  should  be  discharged 
from  the  trust ;  they  were  directed  to  transfer  the  stock,  and  five  persons 
resident  in  Maryland  were  appointed  to  be  trustees  of  the  stock  in  England 
in  their  place.  That  act  having  no  effect,  another  was  passed  in  1780, 
directing  bills  to  be  drawn  upon  the  trustees  in  England,  and  to  be  sold  in 
America,  and  that  in  case  the  trustees  should  refuse  to  act,  or  should  suffer 
the  bills  to  be  protested,  or  in  case  the  British  government  should  interfere, 
the  holders  of  those  bills  should  have  a  right  to  attach  the  property  of  the 
three  trustees,  each  of  whom  had  property  in  Maryland,  and  the  property 
of  Lord  Baltimore's  representatives.  After  the  peace,  the  state  of  Maryland 
assigned  part  of  the  stock  to  the  partnership  in  which  Hanbury  was  a 
partner,  as  a  compensation  for  a  mortgage  which  they  had  on  confiscated 
lands  in  Maryland,  and  under  that  assignment  they  brought  a  bill  in  Chan- 
cery. The  fund,  subject  to  that  assignment,  was  claimed  by  the  new 
state;  and,  there  being  no  claim  by  the  holders  of  the  bills  of  credit,  the 
whole  was  claimed  by  Grove,  the  surviving  trustee,  beneficially,  and  also 
by  Mr.  Harford,  the  devisee  of  Lord  Baltimore,  the  proprietary  ;  a  specific 
lien  was  also  insisted  on  by  the  representatives  of  Russel  for  the  loss  of 
property  attached  under  the  act  of  1780,  in  consequence  of  the  refusal  of 
the  trustees  to  transfer.     Lord  Loughborough  decided  that  there  was  no 


192  USES  AND  TRUSTS. 

(A)  By  what  general  Rules  Trusts  are  governed. 

such  lien :  that  the  new  state  was  not  entitled  to  the  fund,  as  it  could  take 
only  such  rights  of  the  old  as  were  within  its  jurisdiction;  that  it  could 
therefore  make  no  assignment  to  the  plaintiffs  :  that  the  claims  of  the  plain- 
tiffs, the  state,  and  the  others  were  the  subjects  of  treaty,  not  of  municipal 
jurisdiction  ;  and  that  this  was  the  common  case  of  a  trust  without  any 
specific  purpose  to  which  it  could  be  applied,  and  consequently  the  fund 
must  be  at  the  disposal  of  the  crown. 

3  Ves.  J.  424,  Barclay  v.  Russel.  See  10  Ves.  J.  352,  Dolder  v.  Bank  of  England  ; 
11  Ves.  J.  294,  Dolder  v.  Lord  Huntingfield.} 

Trusts  in  general  are  not  barred  by  the  statute  of  limitations.  Thus,  a 
trustee  has  been  decreed  to  account  and  re-convey  after  a  possession  of 
twenty  years.(c)  So,  where  a  trust  is  created  for  payment  of  debts,  it  will 
not  only  take  a  debt  out  of  the  statute  of  limitations,  incurred  since  its  crea- 
tion,^) but  will  also  revive  a  debt  barred  by  the  statute  before  it  was 
raised. (c)  But  this  rule,  that  a  trust  estate  is  not  within  the  statute  of 
limitations,  holds  only  as  between  cestui  que  trusts  and  trustees,  not  betwreen 
cestui  que  trust  and  trustees  on  one  side,  and  strangers  on  the  other. {d) 
And  it  is  said,  that  a  fine  and  five  years'  non-claim  will,  in  favour  of  a 
purchaser,  bar  a  trust  term,  though  cestui  que  trust  be  an  infant. (e)  So,  if 
a  trustee  neglects  to  sue  within  the  time  prescribed  by  the  statute  of  limita- 
tions, cestui  que  trust,  though  an  infant,  is  bound  by  it.(^r) 

Sand,  on  Uses,  250.  (a)  Berrington  v.  Mason,  Finch,  R.  2G2;  /2  Prevost  v.  Gratz, 
6  Wheat  498.g/  (ft)  Norton  v.  Turville,  2  P.  Wms.  144.  (c)  Blakeway  v.  Earl  of 
Strafford,  2  P.  Wms.  373  ;  Jones  v.  Earl  of  Strafford,  3  P.  Wms.  89  ;  Lacon  v.  Briggs, 
3  Atk.  107.  (d)  Llewellin  v.  Mackworth,  2  Eq.  Ca.  Abr.  579;  Townshend  v.  Towns- 
hend,  1  Bro.  Oh.  R.  551  ;  ||15  Vin.  155,  pi.  1  ;  Cholmondeley  v.  Clinton,  1  Meriv. 
257;  2  Jac.  &  Walk.  1,  189;  and  see  1  Sand,  on  Uses,  280.||  (e)  3  P.  Wms.  310, 
note  (G).     (g)  Wych  v.  East  India  Company,  3  P.  Wms.  309.] 

£  Express  trusts  are  not  within  the  siatute  of  limitations  ;  implied 
trusts  are. 

Shelby  v.  Shelby,  1  Cooke,  182;  Lyon  v.  Marclay,  1  Watts,  275.  See  ante,  Limi- 
tation of  J}c<iom,  (D)  2,  Vol.  vi.  p.  378;  Maury's  Adm'r  v.  Mason's  Adm'r,  8  Port.  R. 
211  ;  Allen  v.  Woolley,  1  Green's  Oh.  R.  209,  Wisner  v.  Barnett,  4  Wash.  C.  C.R. 
G31  ;  Prevost  v.  Gratz,  6  Wheat.  481  ;  Boone  v.  Chiles,  10  Pet.  177;  Walton  v. 
Coulson,  1  M'Lean,  132. 

Length  of  time  is  no  bar  to  a  trust  clearly  established.  But  a  trust  proving 
strong  circumstances  once  to  have  existed,  was  presumed,  after  the  lapse 
of  forty  years  and  the  death  of  all  the  original  parties,  to  be  discharged  and 
extinguished. 

Prevost  v.  G»atz,  6  Wheat.  481,  504.g/ 

{  Where  the  equitable  and  legal  estates  unite  in  the  same  person,  and  are 
co-extensive  and  commensurate,  the  former  is  universally  absorbed  in  the 
latter,  and  is  wholly  gone.  Therefore,  where  the  equitable  estate  descends 
ex  parte  paterna,  and  the  legal  estate  ex  parte  materna,  upon  their  union 
the  maternal  heir  is  entitled,  and  the  paternal  heir  will  not  be  relieved  in 
equity. 

1  Bro.  C.  C.  3G3,  Wade  v.  Paget;  3  Ves.  J.  12G,  Phillips  v.  Brydges ;  Ibid.  339, 
Selby  v.  Alston  ;  Doug.  771,  GooduVht  v.  Wells. 

Where  there  is  a  devise  to  trustees  to  sell  for  the  payment  of  debts,  and 
to  divide  the  surplus  among  several  legatees,  it  is  not  necessary  that  those 
legatees  should  be  parties  to  the  conveyance. 

3  Ves.  J.  233,  504,  Wakeman  v.  The  Duchess  of  Rutland.} 

£  A  trust  being  an  incident  to  the  legal  estate  in  lands,  is  of  necessity 


USES  AND  TRUSTS.  193 

B)  What  amounts  to  a  Declaration  of  Trust,  &c. 

destroyed  or  suspended   by  whatever  destroys  or  suspends    the   legal 
estate.     Therefore  the  lord  by  escheat,  the  abater,  intruder,  disseisor, 
and  the  like,  are  not  subject  to  a  trust. 
Benzein  v.  Lenoir,  Dev.  Eq.  225. 

A  trust  for  the  separate  use  of  a  woman,  whether  single  or  married, 
is  valid. 

Davies  v.  Thornycroft,  6  Sim.  420. 

A.  secret  trust  will  not  be  recognised.     To  entitle  it  to  the  protection 
of  the  court,  it  must  be  disclosed. 
Hamilton  v.  Cummings,  1  Johns.  Ch.  124. 

Where  a  trust  is  created  for  the  benefit  of  a  person  without  his 
knowledge  at  the  time,  he  may  afterwards  affirm  the  trust,  and  affirm 
the  performance. 

Moses  v.  Murgatroyd,  1  Johns.  Ch.  119  ;  Cumberland  v.  Codrington,  3  Johns.  Ch. 
261 ;  Shepherd  v.  M'Evers,  4  Johns.  Ch.  136 ;  Neilson  v.  Blight,  1  Johns.  Cas.  205. 

The  assent  of  creditors  is  not  requisite  to  give  legal  validity  to  a  deed 
of  trust  for  their  benefit. 

Nicholl  v.  Mumford,  4  Johns.  Ch.  529.     See  Neilson  v.  Blight,  1  Johns.  Cas.  205. 

When  one  of  several  trustees  refuses  to  accept  and  execute  the  trust, 
the  whole  estate  vests  in  the  others,  as  if  he  were  dead  or  had  not  been 
named  as  trustee. 

King  v.  Donnelly,  5  Paige,  46. 

It  is  a  rule  in  equity,  that  if  one  comes  into  possession  of  trust  pro- 
perty, with  notice  of  the  trust,  he  shall  be  considered  a  trustee,  and,  with 
respect  to  that  property,  bound  to  the  execution  of  the  trust. 

Chaplin  v.  Givens,  Rice's  Eq.  132 ;  Manning  v.  Gloucester,  6  Pick.  6 ;  Stafford  v. 
Rantoul,  12  Pick.  233. 

And  a  trustee,  with  notice  of  his  appointment  as  such,  who  interferes 
with  the  subject-matter  of  the  trust,  shall  not  be  allowed  to  repudiate  the 
trust. 

Rice's  Eq.  R.  132. 

If,  at  the  time  of  the  testator's  death,  there  is  any  specific  property  in 
his  possession  which  belongs  to  others,  which  he  holds  in  trust,  and  it 
can  be  clearly  traced  or  distinguished  from  the  testator's  own,  such  pro- 
perty is  not  assets  for  the  payment  of  his  debts,  or  to  be  distributed  to 
his  heirs,  but  it  is  to  be  holden  as  the  testator  himself  held  it. 

Maury's  Adm'r  v.  Mason's  Adm'r,  8  Port.  212.0 

(B)  What  amounts  to  a  Declaration  of  Trust,  and  when  a  Trust  shall  be  raised. 

The  statute  of  29  Car.  2,  c.  3,  §  7,  enacts,  That  all  declarations  or 
creations  of  trust  shall  be  manifested  by  some  ivriting  signed  by  the  party , 
or  by  his  last  will  in  writing,  or  else  shall  be  void. 

[It  has  been  holden,  that  this  provision  does  not  extend  to  declaration  of  trusts  of 
personalty.  Nab  v.  Nab,  10  Mod.  404 ;  sed  vide  Fordyce  v.  Willis,  3  Bro.  Ch.  R. 
577.]     ||  See  Bayley  v.  Boulcott,  4  Russell,  347.  || 

And  by  §  9,  Assignments  of  trusts  shall  be  in  writing  signed  by  the 
party  assigning  the  same,  or  by  his  last  will,  or  else  shall  be  of  no  effect. 

But  words  which  are  not  altogether  artificial,  will  serve  to  direct  a 
trust,  which  will  not  serve  to  limit  an  estate ;  per  Lord  Keeper. 

Fin.  R.  159,  Nourse  et  al.  v.  Yarmouth. 

Vol.  X.— 25  R 


194  USES   AND   TRUSTS. 

(B)  What  amounts  to  a  Declaration  of  Trust,  &c. 

|| It  is  not  necessary  that  the  trust  should  be  constituted  by  writing; 
it  is  sufficient  to  show  by  written  evidence  the  existence  of  the  trust. 

Randall  v.  Morgan,  12  Yes.  R.  74.||  |3The  proof  of  a  trust  lies  on  the  party  who 
alleges  it.    Prevost  v.  Gratz,  1  Pet.  C.  C.  R.  366. gf 

PA  written  acknowledgment  by  an  executor  of  a  trust  created  by 
parol,  held  to  be  a  lien  on  the  estate  of  the  testator,  conveyed  by  the 
executor  or  trustee  to  a  voluntary  purchaser  with  notice. 

Rutledge's  Adm'r  v.  Smith's  Ex'r,  1  M'Cord's  Ch.  119. 

Parol  evidence  is  admissible  to  establish  a  trust. 

Letcher  v.  Letcher's  heirs,  4  J.  J.  Marsh.  593. £/ 

Where  A  devised  all  his  lands  to  B  and  the  heirs  of  his  body ;  and  in 
another  part  of  his  will,  reciting  that  he  owed  B  money  upon  account,  he 
therefore  devised  to  him  all  his  personal  estate,  and  made  him  executor, 
willing  him  to  pay  his  debts ;  upon  the  reading  of  the  will,  though  the 
clause  as  to  the  payment  of  debts  seemed  to  relate  to  the  personal  estate 
only ;  and  though  the  lands  were  devised  to  B  in  tail,  with  a  remainder 
over  to  another,  and  it  was  objected,  that  a  tenant  in  tail  could  not  be  a 
trustee ;  yet  the  court  decreed  both  real  and  personal  estate  to  be  sold 
for  payment  of  the  testator's  debts;  and  the  decree,  it  is  said,  was 
affirmed  in  the  House  of  Lords. 

1  Vern.  411,  Clowdesley  v.  Pelham. 

So,  if  J  S  devises  his  lands  to  his  brother,  who  is  his  heir  at  law,  in 
fee,  and  likewise  devises  several  legacies,  and  makes  his  brother  executor, 
desiring  him  to  see  his  will  performed  according  to  the  trust  and  confi- 
dence he  had  reposed  in  him  ;  this  makes  the  real  estate  liable  ;for  the 
testator  needed  not  to  have  devised  the  estate  to  his  brother,  being  heir 
at  law,  unless  he  intended  that  he  should  take  it  chargeable  with  the 
debts  and  legacies.     Decreed,  and  affirmed  by  the  House  of  Lords. 

2  Vern.  228,  Alcock  v.  Sparhawk. 

A  trust  was  decreed  of  a  term  for  years  assigned,  though  the_  trust 
was  not  expressed  in  the  deed  ;  it  having  been  so  declared  by  the  assignee, 
who  had  given  bond  to  perform  the  trust. 

Fin.  R.  356,  Goodwin  v.  Cutler.  [So  where  a  bond  was  given  to  cestui  quetrust  to 
assign  as  he  should  direct.  Moorecroft  v.  Dowding,  2  P.  Wins.  314.  So,  where  a 
bond  was  given  by  a  mother  to  her  son  to  surrender  a  copyhold  estate  to  him  :  the 
mother's  brother,  whose  heir-at-law  she  was,  having  been  disappointed  of  devising  the 
estate  to  the  son  from  the  impracticability  of  surrendering  it  to  the  use  of  his  will, 
and  having  taken  this  method  of  securing  it  to  him.  Parks  v.  Wilson,  10  Mod.  515; 
9  Mod.  62,  S.  C] 

[A  covenant  to  make  conveyances,  or  to  purchase  lands  to  certain  uses, 
hath  been  holden  to  be  a  good  declaration  of  trust,  and  binding  upon  the 

estate. 

Earl  of  Plymouth  v.  Hickman,  2  Vern.  167  ;  Blake  v.  Blake,  2  Bro.  P.  C.  350 ;  Deg 
v.  Deg,  2  P.  Wms.  415.] 

||  Where  a  testator  bequeathed  a  legacy  to  A  and  B,  in  trust  for  cer- 
tain purposes,  and  on  the  same  day  a  paper  was  signed  by  the  trustees, 
declaring  a  trust  for  six  named  persons,  and  afterwards  some  lives  were 
added  by  the  testator,  by  which  a  seventh  person  was  admitted  to  a  share : 
on  a  bill  filed  by  one  of  the  six  persons,  the  court  recognised  the  paper 
as  a  valid  declaration  of  trust,  though  not  proved  as  a  testamentary  paper. 

Smith  v.  Attersoll,  1  Russell's  R.  266. 

Where  a  mother,  entitled  to  personal  property  under  a  will,  in  conversa- 


USES  AND  TRUSTS.  195 

(B)  What  amounts  to  a  Declaration  of  Trust,  &c. 

tion  with  the  executor,  expressed  an  intention  to  make  a  settlement  of  part 
of  that  property  which  was  standing  in  his  name  on  her  daughter,  and  re- 
quested the  executor  to  instruct  her  solicitor  to  prepare  such  a  settlement, 
and  afterwards  refused  to  sign  such  settlement  when  prepared,  it  was  held 
that  her  intention  expressed  to  the  executor  did  not  amount  to  a  declaration 
of  trust,  though  writing  was  not  necessary,  the  property  heing  personal. 

Bayley  v.  Boulcot,  4  Russell,  345  ;  and  see  G  Ves.  663  ;  12  Ves.  39. 

Where  a  debtor  by  a  deed-poll  directed,  inter  alia,  the  receiver  of  the 
rents  of  his-  estate  to  keep  down  the  interest  of  a  certain  debt,  Sir  John 
Leach,  M.  R.,  held  that  the  direction  did  not  create  a  trust  in  favour  of  the 
creditor,  if  it  was  without  consideration  and  without  the  privity  of  the 

creditor. 
Page  v.  Broom,  4  Russell,  6. 

If  a  man  devises  1500?.  to  A  and  B,  for  such  uses  as  the  testator  had 
declared  to  them,  and  by  them  not  to  be  disclosed,  and  he  discloses  the 
trust  to  A,  who  by  letter  discloses  it  to  B,  this  shall  be  a  trust,  and  the 
letter  is  a  good  declaration  thereof. 

2  Vera.  106,  Brooke  v.  Brooking ;  [2  Bro.  P.  C.  39,  O'llara  v.  O'Neill,  S.  P.] 

But  if  a  man  devises  40?.,  to  be  paid  to  his  cousin  J  S,  and  by  him  to 
be  disposed  of  in  such  manner  as  the  testator  should  by  a  private  note 
acquaint  him  with,  and  he  dies  without  having  made  any  such  appoint- 
ment, this  shall  be  a  good  bequest  to  J  S,  and  shall  not  go  to  the  execu- 
tors, from  whom  it  was  intended  to  have  been  given  away. 

1  Chan.  Cas.  198,  Martin  v.  Douch. 

A  lent  B  100?.,  and  in  the  note  which  was  given  for  it,  mention  was 
made  that  it  should  be  disposed  of  as  A  should  direct :  on  a  bill  exhibited 
for  it,  the  court  declared  it  was  a  depositum  or  trust,  and  decreed  pay- 
ment of  it,  though  it  was  barred  by  the  statute  of  limitations. 

2  Vent.  345,  Ld.  Hollis's  case. 

A,  in  consideration  of  80?.,  conveys  an  estate  absolutely  to  B,  and  after- 
wards A  brings  a  bill  to  redeem,  and  B  by  answer  insists  that  the  convey- 
ance was  absolute,  but  confesses  it  was  in  trust ;  that  after  the  80?.  paid 
with  interest,  he  was  to  stand  seised  for  the  benefit  of  the  wife  and  child- 
ren of  A,  though  no  trust  was  declared  in  writing,  and  A  replies  to  the 
answer.  It  was  insisted,  that  A  having  replied,  and  defendant  having 
made  no  proof  of  the  trust,  no  regard  ought  to  be  had  to  the  matter  set 
forth  in  avoidance  of  the  plaintiff's  demand;  yet  the  court  decreed  the 
trust  for  the  benefit  of  the  wife  and  children. 

2  Vera.  288,  Hampton  v.  Spencer ;  [2  Atk.  155,  Cottington  v.  Fletcher,  S.  P.] 

So,  if  J  S  makes  his  will,  and  his  wife  executrix,  and  the  son  afterwards 
prevails  on  his  mother  (by  telling  her  that  the  executorship  would  be 
troublesome  to  her,  &c.)  to  get  J  S  to  make  a  new  will,  and  name  him 
executor  therein,  he  promising  to  be  a  trustee  for  the  mother,  which  is 
done  accordingly;  and  in  that  will  there  is  but  a  small  legacy  given  the 
wife,  this  will  be  decreed  a  trust  for  the  wife  on  the  point  of ^  fraud,  not- 
withstanding the  statutes  of  frauds  and  perjuries,  which  requires  a  decla- 
ration of  trust  in  writing. 

1  Vera.  296,  Thynn  v.  Thynn.  [1  Roll.  Abr.  378,  pi.  1 ;  4  Vin.  Abr.  395,  pi.  3, 
Roswell  v.  Every;  5  Vin.  Abr.  521,  pi.  31,  Sellack  v.  Harris;  Pr.  Ch.  3,  Davcmsh  v. 
Baines ;  2  Vera.  506,  Oldham  v.  Litchford ;  Ambl.  67,  Reech  v.  Rennigate  ;  3  Ves. 
jun.  152,  Barrow  v.  Greenough ;  Anstr.  343,  Newcomb  v.  Burdon.  Similar  decisions 
on  the  ground  of  fraud.]    {And  vide,  9  Ves.  J.  519.} 


196  USES   AND  TRUSTS. 

(B)  What  amounts  to  a  Declaration  of  Trust,  &c. 

But  where  one  possessed  of  leases  for  years  devised  them  to  his  wife, 

and  hoped  she  would  leave  them  to  his  son,  and  died ;   and  her  second 

husband  granted  the  leases  away,  and  the  son  sued  to  be  relieved:  his 

bill  was  dismissed,  for  it  was  no  trust  for  the  son. (a)     Cited  by  Lord 

Chancellor  as  a  case  he  remembered  in  Lord  Egerton's  time. 

Chan.  Cas.  310,  Civil  v.  Rich,  [(a)  So  other  cases  have  said,  that  words  merely 
of  recommendation  will  not  be  sufficient  to  create  a  trust.  Bland  v.  Bland,  24th  Feb- 
ruary, 1745  ;  Le  Maistre  v.  Bannister,  26th  November,  1770,  stated  in  Finch's  note  to 
Eales  v.  England,  Pr.  Ch.  200;  Cunliffe  v.  Cunliffe,  Ambl.  626.  However,  notwith- 
standing these  decisions,  it  now  seems  to  be  settled,  that  words  of  desire,  request,  or 
recommendation  (for  request  and  recommendation  are  considered  as  convertible  terms) 
are  sufficient  to  create  a  trust,  provided  that  the  property  be  certain,  and  the  objects 
distinctly  marked.  Where  any  person  gives  property,  and  points  out  the  objects,  the 
property,  and  the  way  in  which  it  shall  go,  that  does  create  a  trust,  unless  he  shows 
clearly  that  his  desire  expressed  is  to  be  controlled  by  the  party,  and  that  he  shall  have 
an  option  to  defeat  it.  Eales  v.  England,  Pr.  Ch.  200,  2  Vern.  486 ;  Glynn  v.  Hard- 
ing, 1  Atk.  469  ;  Vernon  v.  Vernon,  Ambl.  4 ;  Palmer  v.  Scribb,  8  Vin.  Abr.  289,  pi. 
25,  Harland  v.  Trigg;  1  Bro.  Ch.  R.  142;  Nowlan  v.  Nelligan,  Ibid.  489,  Pierson  v. 
Garnett,  2  Bro.  Ch.  R.  38,  226 ;  Richardson  v.  Chapman,  Burn's  E.  L.  tit.  Bishop,  p. 
220;  Massey  v.  Sherman,  Ambl.  520 ;  Wynne  v.  Hawkins,  1  Bro.  Ch.  R.  179 ;  Malini 
v.  Keighley,  2  Ves.  jun.  333  ;  Barrow  v.  Greenough,  3  Ves.  jun.  152.  In  Pushman 
v.  Filliter,  3  Ves.  jun.  7,  where  a  testator  gave  the  residue  of  his  personal  estate  to 
his  wife,  desiring  her  to  provide  for  his  daughter  A  out  of  the  same,  as  long  as  she,  his 
wife,  should  live,  and  at  her  decease  to  dispose  of  what  should  be  left  among  his  chil- 
dren, in  such  manner  as  she  should  judge  most  proper;  upon  a  bill  filed  by  the  children 
against  the  wife's  representative  to  have  the  benefit  of  this  residuary  bequest,  the  Master 
of  the  Rolls  said,  that  it  is  now  clearly  settled,  that  any  words  of  recommendation  by 
any  person  having  a  right  to  command,  do  create  a  trust,  if  the  person  and  property 
are  defined  ;  but  the  question  in  this  case,  he  added,  is  merely  a  question  of  construc- 
tion upon  the  words,  "  what  should  be  left ;  and  those  words  he  construed  to  convey 
an  absolute  gift  to  the  testator's  wife  of  any  part  of  his  property  to  any  use  she  might 
think  proper,  clothed  only  with  a  trust  for  his  daughter  A.]  [|  And  see  1  Sand,  on  Uses, 
317,  (4th  ed.,)  and  cases  there  collected ;  and  tit.  Legacy,  (B,)  Vol.  vi.  p.  166.  || 

[An  estate  was  devised  to  a  body  corporate  in  trust  to  sell,  and  that  the 
money  arising  from  the  sale,  and  the  receipt  and  profits  till  the  sale,  should 
be  divided  between  the  testator's  nephews  and  nieces.  The  question  was, 
Whether  the  devise  to  the  corporation  being  void,  the  heir  at  law  took 
beneficially,  or  subject  to  the  trust  ?  And  by  Eyre,  B. — Although  the  de- 
vise to  the  corporation  be  void  at  law,  yet  the  trust  is  sufficiently  created 
to  fasten  itself  upon  any  estate  the  law  may  raise.  This  is  the  ground  on 
which  courts  of  equity  have  decreed  in  cases  where  no  trustee  has  been 
named.     Decreed,  that  the  heir  at  law  is  a  trustee  to  the  uses  of  the  will. 

Sonley  v.  Clockmaker's  Company,  Bro.  Ch.  R.  81.] 

||  Where  a  testator  by  a  codicil  required  and  entreated  the  executor 
and  residuary  legatee,  by  will  or  deed,  to  settle  and  secure  the  sum  of 
500?.,  to  be  paid  at  his  decease,  to  his  relation  Mrs.  Elizabeth  Taylor, 
wife  of  Mr.  Taylor,  to  be  paid  at  the  executor's  decease,  the  testator  de- 
claring that  he  had  omitted  to  express  it  in  his  will,  not  doubting  that 
the  executor  would  comply  with  his  request,  it  was  held  a  trust  by  way 
of  legacy  out  of  the  assets,  and  not  a  condition  imposed  upon  the  execu- 
tor independent  of  assets. 
Taylor  v.  George,  2  Ves.  &  Bea.  378. 

Where  the  testator  gave  to  his  wife  A  C  500?.,  and  declared  it  was  his 
will  and  desire  that  A  C  might  dispose  of  the  same  amongst  her  relations 
as  she  by  will  might  think  proper,  it  was  held  a  trust  for  the  relations  for 
A  C ;  and  the  500?.  was  held  well  bequeathed  by  the  will  of  A  C  to  her 


USES   AND   TRUSTS.  197 

(B)  What  amounts  to  a  Declaration  of  Trrtst,  &c. 

sister  and  her  sister's  children,  though  made  without  reference  to  the  will 

of  the  first  testator. 

Forbes  v.  Ball,  3  Meriv.  437  ;  and  see  1  Sim.  &  Stu.  387,  and  the  cases  under 
Legacy,  (B),  Vol.  vi.  p.  166. j| 

With  respect  to  the  raising  of  trusts,  it  has  been  held,  that  where  a 
trust  is  created  by  marriage  settlement  or  will,  or  a  trust  of  a  term  to  raise 
money  at  twenty-one  or  marriage,  and  the  person  dies  b  fore  the  time,  a 
court  of  equity  will  not  suffer  the  trustee  to  raise  the  money  at  law. 
MS.  Hep.  Fry  v.  Fry,  in  Chan.  Trin.  27  G.  2. 

A  by  his  will  devised  his  real  estate  to  his  wife  for  life,  with  remainders 
over,  and  gave  a  legacy  to  his  daughter,  to  be  paid  within  one  month  after 
the  death  of  his  wife,  and  charged  it  upon  the  real  estate.  The  daughter 
died  in  the  life  of  the  wife,  unmarried  ;  and  after  the  wife's  death  the  repre- 
sentative of  the  daughter  brought  his  bill  to  have  this  legacy  paid  out  of 
the  real  estate.  For  the  plaintiff  it  was  insisted,  that  this  was  different 
from  the  common  case  of  a  legacy  payable  out  of  the  lands  ;  for  here  the 
time  of  payment  was  postponed  out  of  regard  to  the  circumstances  of  the 
fund,  and  not  of  the  person.  But  by  Lord  Chancellor, — The  general  rule 
is,  that  where  a  legacy  or  portion  is  given  to  be  raised  out  of  lands,  pay- 
able at  a  certain  time,  if  the  legatee  or  child  dies  before  that  time  comes, 
and  before  the  time  when,  in  the  view  of  the  testator,  he  could  be  supposed 
to  want  the  legacy  or  portion,  it  shall  sink  in  the  land  for  the  benefit  of  the 
heir  or  devisee ;  and  this  rule  has  only  been  broke  into  in  favour  of  the 
husband  or  children  of  such  legatee,  &c,  where  she  has  married.  But 
that  is  not  the  present  case  ;  and  as  to  the  argument  made  use  of  from  the 
circumstances  of  the  fund,  that  is  only  brought  as  an  auxiliary  reason  ;  and 
no  case  has  been  determined  upon  such  circumstances  alone.  If  it  had 
been  given  on  a  more  remote  contingency,  as  on  the  failure  of  issue  of  A, 
&c,  there  might  have  been  some  reason  to  have  given  it  to*  the  representa- 
tive, as  the  testator  might  probably  think  the  legatee  could  not  be  living  at 
such  a  distant  period.  But  here  it  depends  on  the  death  of  his  wife,  which 
might  happen  in  a  reasonable  time.  In  cases  where  it  has  been  given  to 
A,  his  executors  and  administrators,  it  shows  the  intention  of  the  testator 
to  make  it  transmissible :  and  where  it  has  been  charged  by  a  condition, 
or  a  conditional  limitation,  and  the  legatee  has  had  a  remedy  at  law  to  de- 
feat the  devise  of  the  estate  to  the  devisee,  this  court  will  not  interpose  to 
take  that  remedy  from  him,  but  will  leave  the  devisee  to  take  the  estate 
cum  onere.  But  in  the  case  of  a  trust  created  by  marriage  settlement  or 
will,  or  a  trust  of  a  term  to  raise  money  at  twenty-one  or  marriage,  where 
the  person  dies  before,  this  court  will  not  suffer  the  trustee  to  raise  the  mo- 
ney at  law,  where  there  might  be  a  remedy  at  law  contrary  to  the  rule  of 
this  court.  The  testator  here,  in  the  latter  part  of  his  will,  gives  legacies 
to  his  two  daughters,  and  if  either  of  them  die,  her  share  to  go  to  the  sur- 
vivor ;  this  looks  as  if  he  did  not  intend  that  the  representative  should  have 
it  even  in  the  first  bequest,  and  is  a  farther  circumstance  to  confirm  the 
opinion  given  against  raising  the  legacy  out  of  the  real  estate. — Bill  dis- 
missed, but  without  costs.  If  this  had  been  the  case  of  a  child  who  had 
married,  and  left  children,  it  might  have  been  otherwise. 

Fry  v.  Fry,  in  Chan.  Trin.  27  Geo.  2,  MS.  Kep. 

||  If  a  testator  expressly  says  he  gives  upon  trust,  and  says  no  more,  it 
has  been  long  established  that  the  next  of  kin  will  take.     Then,  if  he 

r2 


19S  USES   AND   TRUSTS. 

(B)  What  amounts  to  a  Declaration  of  Trust,  &c. 

proceeds  to  express  the  trust,  but  does  not  sufficiently  express  it,  or 
expresses  a  trust  that  cannot  be  executed,  it  is  exactly  the  same  as  if  he 
had  said  he  gave  upon  trust,  and  stopped  there.  Where  a  trust  is  clearly 
imposed,  the  trustee  cannot  take  beneficially,  though  the  trust  may  be 
too  indefinite  for  execution. 

See  Morrice  v.  Bishop  of  Durham,  9  Yes.  399,  10  Ves.  537  ;  Langham  v.  Sandford, 
17  Ves.  435 ;  Gibbs  v.  Rumsey,  2  Ves.  &  Bca.  297  ;  Vesey  v.  Jamson,  1  Sim.  &  Stu. 
69.|| 

)3  The  owner  of  a  tract  of  land  agreed  to  give  a  lot  for  the  purpose  of 
erecting  a  school-house  upon  it  by  contribution,  for  the  benefit  of  the 
neighbourhood.  Held  that  this  created  a  trust  for  the  purpose  in  those 
who  contributed. 

Martin  v.  M'Cord,  5  Watts,  493. 

Where  a  purchase  of  land  was  made  by  A,  who  made  an  agreement 
before  the  purchase  with  B,  that  the  latter  should  be  equally  concerned ; 
held,  that  A  in  equity  must  be  considered  as  holding  for  B  and  himself 
as  tenants  in  common. 

Stewart  v.  Brown,  2  S.  &  R.  461. 

A  bequest  to  A  of  "  all  the  residue  and  remainder  of  my  estate,  of  what- 
soever kind  the  same  may  be,  subject  to  the  maintenance  of  my  son  B, 
during  his  natural  life ;"  the  residue  consisted  of  personal  estate ;  held, 
to  create  a  trust  for  the  benefit  of  B,  and  to  make  A  the  trustee. 
Pierce  v.  M'Keehan,  3  Watts  &  S.  280. 

When  partnership  funds  are  employed  by  a  partner  in  the  purchase 
of  lands,  and  a  deed  is  taken  in  his  own  name,  a  resulting  trust  will  arise 
as  to  the  other  partners. 

Phillips  v.  Crammond,  2  Wash.  C.  C.  R.  441. 

Declarations  of  a  testator,  made  contemporaneously  with  the  execution 
of  his  will,  are  sufficient  evidence  to  establish  his  trust  in  the  devisee, 
when  fraud  is  alleged ;  and  if  the  testator  has  executed  his  will  on  the 
faith  of  a  promise  by  the  devisee  to  perform  the  trust,  the  devisee  shall 
be  compelled  to  make  it  good. 

Hoge  v.  Hoge,  1  Watts,  163,  215. 

Testator  directed  that  the  profits  arising  from  his  share  in  a  certain 
vessel  should  be  paid  to  his  wife  for  her  use  and  for  the  bringing  up  of 
his  two  sons,  and,  after  the  lapse  of  a  certain  time,  his  interest  in  the 
vessel  should  be  sold ;  and  he  then  bequeathed  the  proceeds  to  his  two 
sons,  and  appointed  his  friend,  A  B,  "guardian  in  trust,"  to  receive  the 
money  thus  arising,  and  invest  it  on  interest  until  his  sons  should  come 
of  full  age.  Held,  that  A  B  should  be  considered  as  a  trustee,  and  not 
as  guardian  for  the  children. 
Ex  parte  Potts,  1  Ashm.  340. 

Where  one  directed  a  sum  of  money  to  be  carried  to  a  joint  account 
of  herself  and  the  plaintiff,  as  trustee  for  the  plaintiff,  and  the  bankers 
gave  her  a  promissory  note  for  the  amount,  expressing  that  it  was  given 
to  her  as  trustee,  and  was  so  entered  on  their  books,  which  note  after 
her  death  Avas  received  by  her  executors ;  held,  that  a  trust  Avas  com- 
pletely declared,  and  that  the  executors  were  trustees  of  the  money 
received  for  the  party  in  whose  favour  the  trust  was  declared. 

Wheatley  v.  Purr,  1  Keen,  551. 


USES  AND  TRUSTS.  199 

(C)  Resulting  Trust,  or  Trust  by  Implication. 

A  trust  need  not  be  created  in  writing.     It  is  sufficient  if  it  be  proved 

under  the  hand  of  the  party  to  be  charged. 

Second  Unitarian  Society  v.  Woodbury,  14  Maine,  281.  See  Jackson  v.  Sternbergh, 
1  Johns.  Cas.  153  ;  Whelan  v.  Whelan,  3  Cowen,  537. 

The  holder  of  a  note  endorsed  to  him  as  secm*ity  for  a  debt,  recovered 
judgment  against  the  promisor,  and  levied  on  the  rents  and  profits  of  his 
land,  for  a  term  of  years,  signed  a  writing  not  under  seal,  promising  to  pay 
to  the  plaintiff  all  the  rents  he  should  receive  after  his  debt  should  be  paid, 
or  allow  the  plaintiff  the  use  and  improvement  of  the  land  after  such  pay- 
ment. Held  that  this  constituted  a  sufficient  declaration  of  trust. 
Arms  v.  Ashley,  4  Pick.  71. 

Where  the  owner  of  certain  real  estate  gave  a  bond  to  secure  the  same 
to  another,  who  entered  thereon  and  received  the  rents  and  profits  of  the 
same :  held,  that  this  created  a  trust,  or  a  sufficient  declaration  by  the 
obligor  that  he  held  the  estate  in  trust  for  the  obligee. 

Orleans  v.  Chatham,  2  Pick.  29. 

Where  two  persons,  A  and  B,  sold  personal  property  with  the  assent 
of  its  owner ;  took  bonds  in  their  own  names  from  the  purchasers ;  col- 
lected part  of  the  money ;  proffered  themselves  ready  to  account  for  such 
sales ;  made  a  return  thereof  as  trustees :  a  court  of  equity  will  infer 
some  conventional  arrangement  between  the  parties,  in  the  nature  of  a 
trust,  which  may  be  enforced  in  that  court. 
Ringgold  v.  Ringgold,  1  Har.  &  Gill,  11. 

A  deed  of  assignment  of  goods,  which  does  not  identify  them,  and  re- 
fers only  to  a  non-existing  schedule,  for  a  description  of  them,  is  invalid 
as  a  conveyance ;  but  such  a  deed,  containing  a  declaration  of  the  trust, 
under  which  the  goods  were  intended  to  be  assigned,  may  be  effectual  to 
declare  the  trust. 

Drakely  v.  Deforest,  3  Conn.  272. 

A  trust  estate  in  real  property,  as  separate  from  legal  ownership,  may 
be  created  by  an  express  declaration  of  trust,  or  raised  upon  certain  facts 
by  implication  of  law. 

Elliott  v.  Armstrong,  2  Blackf.  198. £f 

(C)  What  shall  be  deemed  a  resulting  Trust,  or  Trust  by  Implication. 

It  has  been  shown  under  the  last  head,  that  by  the  statute  against 
frauds  and  perjuries,  the  29  Car.  2,  c.  3,  all  declarations  of  trusts  were 
to  be  made  in  writing ;  but  there  is  a  saving  in  the  act  with  regard  to 
trusts  resulting  by  implication  of  law,  which  are  left  on  the  footing  where- 
on they  stood  before  the  act ;  now  a  bare  declaration  by  parol  before  the 
act,  would  prevent  any  resulting  trust.  Arg.  and  the  court  seemed  to 
be  of  that  opinion. 

2  Vern.  294,  pi.  285,  Lady  Bellasis  v.  Compton  and  Frankland.  [That  parol  evi- 
dence is  admissible  to  rebut  a  resulting  use  is  fully  established  by  the  case  of  Lord 
Altham  v.  Earl  of  Anglesea,  2  Salk.  676  ;  Dougl.  26.]  ||  Finch  v.  Finch,  15  Ves.  43  ; 
Bartlett  v.  Pickersgill,  1  Eden  R.  515. || 

It  was  likewise  ruled  by  Lord  Chan.  Cowper,  that  the  statute  of  frauds, 
§  8,  which  says,  "  that  all  conveyances  where  trusts  and  confidences  shall 
arise  or  result  by  implication  of  law,  shall  be  as  if  that  act  had  never 
been,"  must  relate  to  trusts  and  equitable  interests,  and  cannot  relate  to 
a  use  which  is  a  legal  estate. 

1  P.  Wins.  112,  Lamplugh  v.  Lamplugh. 

If  a  man  purchases  lands  in  another's  name,  and  pays  the  money,  it 


200  USES   AND   TRUSTS. 

(C)  Resulting  Trust,  or  Trust  by  Implication, 

■will  be  a  trust  for  him  that  paid  the  money,  though  there  be  no  deed 
made  declaring  the  trust  thereof;  for  the  statute  of  frauds  and  perjuries 
extends  not  to  trusts  raised  by  operation  of  law. 

2  Vent.  361,  Anon. ;  1  Vera.  366,  S.  P.  Gascoigne  v.  Thwyng.  Admitted ;  but 
there  said,  "that  the  proof  must  be  clear  that  he  paid  the  purchase-money."  j| Finch 
v.  Finch,  15  Yes.  43;  Mackreth  v.  Symmons,  Ibid.  350  ;j|  /3Jaekman  v.  Ringland, 
4  Watts  &  Serg.  257  ;  Doyle  v.  Sleeper,  1  Dana,  536;  Letcher  v.  Letcher's  heirs,  4 
J.  J.  Marsh.  592;  Perry  v.  Head,  1  A.  K.  Marsh.  47;  M'Guire  v.  M'Gowen,  4 
Desaus.  491 ;  Elliott  v.  Armstrong,  2  Blackf.  198  ;  Jenison  v.  Graves,  2  Elackf.  440 ; 
Forsyth  v.  Clark,  3  Wend.  637 ;  Jackson  v.  Bateman,  2  Wend.  270 ;  Jackson  d.  Fel- 
ler v.  Feller,  2  Wend.  265 ;  Jackson  v.  Matsdorff,  11  Johns.  91 ;  Jackson  d.  Kane  v. 
.Sternbergh,  1  Johns.  Cas.  153  ;  S.  C.  1  Johns.  45,  n. ;  Jackson  v.  Mills,  13  Johns. 
463  ;  Jackson  v.  Morse,  16  Johns.  197  ;£f  {10  Ves.  J.  360,  Rider  v.  Kidder  ;  1  Johns. 
Ca.  153,  Jackson  v.  Sternbergh;  1  Johns.  Rep.  45,  n.  S.  C. ;  3  Johns.  Rep.  216, 
Foote  v.  Coldin.} 

||  In  order  to  raise  a  trust  of  this  kind,  the  fact  of  the  ownership  of  the 
money  should  appear  on  the  face  of  the  deed,  either  by  a  recital,  or  by  ex- 
pressions which  amount  to  a  necessary  implication  or  presumptive  proof 
of  it. (a)  If,  however,  it  be  expressly  stated  in  the  conveyance  that  the 
money  was  paid  by  the  nominal  purchaser,  and  nothing  shall  appear  to 
explain  the  nature  of  the  transaction,  then  if  in  his  lifetime  such  nominal 
purchaser  shall  by  any  note  or  memorandum,  in  writing,(6)  or  by  his  an- 
swer to  a  bill  filed  against  him  for  a  recovery  thereof,  (though  he  shall  at 
the  same  time  plead  the  statute  of  fraud.s,)(<?)  confess  the  purpose  for  which 
the  purchase  was  made ;  or  if,  after  his  death,  he  shall  leave  any  papers 
disclosing  the  real  circumstances  of  the  case,(cZ)  in  all  these  cases  the  court 
will  raise  the  trust,  even  against  the  express  declaration  of  the  deed. 

(a)  2  Vern.  168  ;  Prec.  Ch.  104 ;  Kirk  v.  Webb,  Ibid.  84 ;  Denton  v.  Davis,  18  Ves. 
499.  {b)  Bellamy  v.  Burrow,  Ca.  temp.  Talb.  97  ;  O'Hara  v.  O'Neil,  2  Eq.  Ca.  Abr. 
745  ;  Vin.  tit.  Trust,  (E).  (c)  Cottington  v.  Fletcher,  2  Atk.  155  ;  sed  vide  4  Ves.  23. 
{d)  Ryall  v.  Ryall,  Ambr.  413 ;  Lane  v.  Dighton,  Ibid.  409. 

If,  indeed,  upon  a  bill  filed  against  him  for  a  discovery,  the  nominal 
purchaser  deny  the  facts  by  his  answer,  and  insist  upon  the  statute  of 
frauds,  it  should  seem  that  parol  proof  cannot  be  admitted  to  prove  the 
trust. 

Skett  v.  Whitmore,  2  Freem.  352;  Newton  y.  Preston,  Prec.  Ch.  103;  Willis  v. 
Willis,  2  Atk.  71  ;  Cooth  v.  Jackson,  4  Ves.  12 ;  Rowe  v.  Teed,  15  Ves.  374 ;  Evans 
v.  Harris,  2  Ves.  &  Bea.  361 ;  0  Haines  v.  O'Conner,  10  Watts,  313. £f 

No  rule  is  more  certain  than  that  if  a  man  makes  a  conveyance  in  trust 
for  such  persons  and  such  estates  as  he  shall  appoint,  and  makes  no  ap- 
pointment, the  resulting  trust  must  be  to  him  and  his  heirs.  The  trust 
in  equity  must  follow  the  rules  of  law  in  the  case  of  a  use,  and  that  it 
would  be  so  in  the  case  of  a  use  is  undoubtedly  true ;  and  that  was  Sir 
Edward  Cleer's  case  in  6  Rep.  per  Lord  Chancellor. 

Fitz.  Gibb.  223,  Fitzgerald  v.  Lord  Fauconbridge ;  {10  Ves.  J.  527,  537.}  f|  Where 
a  tenant  for  life  of  a  college  lease,  having  a  power  of  appointment,  renewed  it  in  his 
own  name,  and  his  appointee  died  in  his  lifetime,  it  was  held  a  resulting  trust  for  the 
representative  of  the  author  of  the  power.     1  Ball.  &■  Be.  45. || 

But  trusts  arising  by  operation  of  law  have  been  but  of  two  kinds,  (first) 
either  where  the  conveyance  has  been  taken  in  the  name  of  one  man,  and 
the  purchase-money  paid  by  another ;  or,  (secondly,)  where  the  owner  of 
an  estate  has  made  a  voluntary  conveyance  of  it,  and  made  a  declaration 
of  the  trust  with  regard  to  one  part  of  the  estate,  and  has  been  silent 
with  regard  to  the  other  !1}  part  of  it.(e)     Per  Lord  Chancellor. 

Barnard.  Rep.  in  Cane.  388,  Lloyd  v.  Spillit.     The  reason  why  the  court  has  al- 


USES  AND   TRUSTS.  201 

(C)  Kesulting  Trust,  or  Trust  by  Implication. 

lowed  a  trust  by  operation  of  law  to  arise  in  the  latter  case,  has  been,  that  the  pi 
by  declaring  part  of  the  trust  to  be  for  another,  and  by  saying  nothing,  with  regard  to 
the  other  part  of  it,  shows  his  intention  to  be,  that  the  other  was  to  have  only  one  pair 
of  the  trust;  and  consequently  he  himself  ought  to  have  the  benefit  of  the  other  part 
of  it.  These  have  beon  the  only  two  instances  of  trust  allowed  of,  to  arise  by  opera- 
tion of  law,  since  the  statute  of  frauds,  unless  there  has  been  a  plain  or  express  fraud. 
Where  there  has  been  a  fraud,  in  gaining  a  conveyance  from  another,  that  may  be  a 
reason  for  making  a  grantee  in  that  conveyance  to  be  considered  merely  as  a  tru 
Per  Lord  Chancellor,  Ibid.  {x}  2  Binn.  387,  Lessee  of  Huston  v.  Hamilton.}  [(e)  We 
cannot  help  suspecting  the  fidelity  of  the  reporter  in  this  passage,  as  the  Chancellor  i< 
not  made  to  deliver  himself  with  his  usual  precision  and  accuracy.  For  there  certainly 
have  been  other  cases,  besides  those  which  are  here  put  by  my  Lord  Ilardwicke, 
wherein  constructive  trusts  have  been  admitted.  For  instance,  where  there  were  three- 
lessees  under  a  church,  and  one  of  them  surrendered  the  old  lease,  and  took  a  new  one 
in  his  own  name,  it  was  holden  to  be  a  resulting  trust  for  them  all.  Palmer  v.  Young, 
1  Vern.  27G.  ||  Whether  the  principle  extends  to  the  purchase  of  the  reversion  expect- 
ant on  the  lease,  see  Randall  v.  Russell,  3  Meriv.  190 ;  Hardman  v.  Johnson,  Ibid. 
347.  The  rule  has  been  adopted  by  the  legislature  in  several  statutes  relating  to  the 
redemption  and  purchase  of  land-tax.  39  G.  3,  c.  108,  \  8  ;  42  G.  3,  c.  116.  ||  So,  if  a 
guardian  or  trustee  for  an  infant  renew  a  lease,  the  renewed  lease  will  be  to  the  use 
of  the  infant,  Whalley  v.  Whalley,  1  Vern.  484;  Lee  v.  Vernon,  7  Bro.  P.  C.  432  ; 
|  See  title  Leases,  U. }  ||  Or  to  the  trust  of  the  old  lease,  whatever  it  may  be.  Holt  v. 
Holt,  1  Chan.  Ca.  191 ;  Pierson  v.  Shore,  1  Atk.  480 ;  Abney  v.  Miller,  2  Atk.  597  ; 
Edwards  v.  Lewis,  3  Atk.  538 ;  Featherstonhaugh  v.  Fenwick,  17  Ves.  228  ;  Brook- 
man  v.  Hales,  2  Ves.  &Bea.  45  ;  Milner  v.  Harewood,  18  Ves.  259,  274.  But  if  there 
be  a  guardian  or  trustee  for  an  infant,  to  whom  lands  are  descended  or  devised,  but 
the  title  is  really  in  a  third  person,  and  the  trustee  or  guardian  buy  in  the  title  of  the 
third  person,  this  shall  not  be  a  trust  for  the  infant.  Lesley's  case,  2  Freem.  52  ;  and 
see  1  Scho.  &  Lef.  123.  ||  So,  if  a  trustee  purchase  lands  with  his  trust-money,  and 
take  the  conveyance  in  his  own  name  without  declaring  the  trust ;  but  reciting  or 
otherwise  admitting  that  the  purchase  was  made  with  the  profits  of  the  trust  estate,  a 
trust  will  result  for  the  person  entitled  to  the  profits.  Deg  v.  Deg,  2  P.  Wms.  414. 
||  See  Perry  v.  Phillips,  4  Ves.  108  ;  17  Ves.  173.  So,  if  two  persons  make  a  joint  pur- 
chase in  the  name  of  one,  it  is  a  resulting  trust  for  the  other.  Wray  v.  Steele,  2  Ves. 
&  Bea.  388;  Anon.,  2  Vent.  361.  ||  So,  if  a  mortgagee,  whose  mortgage  was  taken 
in  the  name  of  a  trustee,  buys  in  the  equity  of  redemption,  in  the  name  of  the  same 
trustee,  without  any  declaration  of  the  trust,  yet  there  is  a  good  resulting  trust  to  the 
mortgagee.  Acherley  v.  Acherley,  4  Bro.  P.  C.  67.  So,  if  a  term  is  created  to  pay 
debts,  or  devised  for  a  specific  purpose,  after  the  debts  paid,  or  purpose  answered, 
there  is  a  trust  for  the  heir.  Countess  of  Bristol  v.  Hungerford,  2  Vern.  645  ;  Levet 
v.  Needham,  Ibid.  138.  So,  a  grant  of  the  next  avoidance  of  a  church  to  a  person, 
without  his  privity,  is  a  resulting  trust  for  the  grantor.  Duke  of  Norfolk  v.  Brown, 
Pr.  Ch.  80 ;  1  Eq.  Ca.  Abr.  381,  pi.  4,  S.  C.  Nor  is  there  a  resulting  trust  only  in 
those  cases  where  part  of  the  estate  only  is  disposed  of  or  conveyed ;  for  though  the 
whole  estate  be  conveyed,  yet  if  it  be  for  particular  purposes,  or  on  particular  trusts, 
which  by  accident  or  otherwise  cannot  take  effect,  a  trust  will  result ;  as,  where  a 
testator  devises  real  estates  to  trustees  to  sell  and  convert  into  personalty  for  particular 
purposes  specified  in  the  will,  and  those  purposes  cannot  be  effectuated,  the  real 
estates,  or  the  produce  thereof,  will  in  such  case  result  to  the  heir.  Cruse  v.  Barley, 
3  P.  Wms.  20;  Randall  v.  Bookey,  Pr.  Ch.  162;  Emblyn  v.  Freeman,  Ibid.  541; 
Stonehouse  v.  Evelyn,  3  P.  Wms.  252 ;  Arnold  v.  Chapman,  1  Ves.  108  ;  Digby  v. 
Legard,  Tr.  1774,  reported  in  the  note  in  3  Cox's  P.  Wms.  22  ;  Akerovd  v.  Smithson, 
Ibid,  and  1  Bro.  Ch.  R.  503  ;  Robinson  v.  Taylor,  2  Bro.  Ch.  R.  589  ;  Spink  v.  Lewis, 
3  Bro.  Ch.  R.  355  ;  sed  vide  Ogle  v.  Ogle,  1  Bro.  Ch.  R.  501.  Neither  is  it  universally 
true,  as  is  observed  by  Mr.  Fonblanque,  (2  Eq.  Tr.  122,  note,)  that  what  is  not  con- 
veyed will  result ;  as,  where  the  grantor  limits  an  estate  for  years  to  himself,  and  an 
estate  to  another,  by  way  of  use,  upon  a  contingency  which  may  not  happen  within 
the  term  of  years,  an  estate  of  freehold  will  not  result  to  the  grantor.  Adams  v.  Savage, 
2  Salk.  079,  et  suprd.] 

Where  it  plainly  appeared  upon  the  evidence  of  both  sides,  that  the 
consideration-money  paid  on  a  purchase  was  the  proper  money  of  A, 
(though  mentioned  in  the  conveyance  to  be  paid  by  B ;)  in  such  case,  had 

Vol.  X.— 26 


5202  USES   AND  TRUSTS. 

(C)  Resulting  Trust,  or  Trust  by  Implication. 

it  not  been  for  the  statute  of  frauds,  this  would  have  been  made  a  result- 
ing trust ;  and  B  after  A's  death  executing  a  declaration  of  trust,  this 
plainly  took  it  out  of  the  statute.     Per  Lord  Chancellor  Cowper. 

I  P.  Wms.  323,  Ambrose  v.  Ambrose.  {But  see  3  Johns.  Rep.  21G,  Foote  v.  Col- 
vin,  that  the  trust  may  be  proved  by  parol.  { 

Wherever  there  is  a  consideration  there  can  be  no  resulting  trust. 
But  if  a  lease  be  made  for  years  without  a  consideration,  there  will  be  a 
resulting  trust  to  the  lessor. (a) 

[(a)  Rut  it  should  seem,  that  there  can  be  no  implied  trust  between  a  lessor  and 
lessee  ;  because  every  lessee  is  a  purchaser  by  his  contract  and  his  covenants,  which 
excludes  all  possibility  of  implying  a  trust  for  the  lessor ;  and  therefore  in  that  case, 
if  there  be  any  trust  at  all,  it  must  be  declared  in  writing.  Pilkington  v.  Bayley, 
7  Rro.  P.  C.  526.  Rut  between  an  assignor  and  an  assignee  there  may  be  an  implied 
trust.  Hutchins  v.  Lee,  1  Atk.  447.]  ||  Where  a  term  of  years  was  created,  and  no 
trust  of  it  declared,  but  the  estate  devised  to  tenants  for  life  with  remainder  over,  the 
court  decided  that  there  was  no  resulting  trust  of  the  term,  but  that  it  attended  the 
inheritance.     Sidney  v.  Miller,  Coop.  Chan.  Ca.  206. || 

Where  a  daughter's  portion  was  charged  upon  the  father's  land,  she,  at 
the  request  of  her  father,  had  released  her  interest  in  the  land,  to  the  intent 
that  he  might  be  enabled  to  make  a  clear  settlement  thereof  upon  his  son. 
It  was  declared  by  the  Lord  Keeper,  that  if  this  was  done  by  the  daughter 
without  any  consideration,  there  would  be  a  resulting  trust  in  the  father, 
whereby  he  should  be  chargeable  to  the  daughter  for  so  much  money. 

Freem.  305,  Lady  Tyrrell's  case. 

But  where  a  trustee  purchases  lands  out  of  the  profits  of  the  trust- 
estate,  and  takes  the  conveyance  in  his  own  name ;  though  probably,  if 
he  cannot  make  other  satisfaction  for  the  misapplication,  these  lands  may 
be  sequestered,  yet  they  cannot  be  decreed  to  be  a  trust  for  cestui  que 
trust,  any  more  than  if  A  borrows  money  of  B,  and  purchases  land  with 
it, (b)  those  lands  are  no  trust  for  B,  for  it  is  not  a  trust  in  writing ;  and 
a  resulting  trust  it  cannot  be,  because  that  would  be  to  contradict  the 
deed,  by  parol  proof,  directly  against  the  statute  of  frauds.  But  if  this 
purchase  had  been  recited  to  have  been  made  with  the  profits  of  the  trust- 
estate,  this  appearing  in  writing  might  ground  a  resulting  trust.  On 
appeal  to  the  House  of  Lords,  this  decree  was  affirmed. 

Ch.  Prec.  84,  pi.  77,  Kirk  v.  Webb;  [Show.  P.  C.  83.  {Vide  2  Dick.  593,  Wilson 
v.  Foreman,  and  the  remarks  on  it  in  10  Ves.  J.  519.  Also  8  Ves.  J.  46,  Lord  Ched- 
worth  v.  Edwards. }  (b)  The  result  of  the  different  cases  upon  this  point  is  well 
stated  by  Mr.  Sanders  in  his  edition  of  Atkyn's  Reports,  2  vol.  150,  note  (2) ;  ||  and  see 
1  Sand,  on  Uses,  322,  (4th  edit.) ||  [If  the  consideration-money  is  expressed  in  the  deed 
to  be  paid  by  the  person  in  whose  favour  the  conveyance  is  taken,  and  nothing  appears 
in  such  conveyance  to  create  a  presumption  that  the  purchase-money  belonged  to  an- 
other, parol  proof  cannot  be  admitted  after  the  death  of  the  nominal  purchaser  to  prove 
a  resulting  trust;  for  that  would  bo  contrary  to  the  Statute  of  Frauds  and  Perjuries. 
See  the  principal  case;  Walter  uV  ('hirton's  case,  Pr.  Ch.  88;  Heron  v.  Heron,  Ibid. 
163  ;  Newton  v.  Preston,  Ibid.  103  ;  Gascoigne  v.  Thwyng,  1  Vern.  366  ;  Hooper  v. 
Eyles,  2  Vern.  480  ;  Crop  v.  Norton,  2  Atk.  75.]  ||  Rut  it  seems  now  settled  other- 
wise. _  See  Lench  v.  Lench,  10  Ves,  jun.  511 ;  Sugd.  Vend.  598  ;  Sand,  on  Uses,  325. || 
[But  if  the  nominal  purchaser  in  his  lifetime  gives  a  declaration  of,  or  confesses  the 
trust,  that  takes  it  out  of  the  statute.  Ambrose  v.  Ambrose,  1  P.  Wms.  322;  Ryal  v. 
Ryal,  1  Atk.  59.  In  Lane  v.  Dighton,  Amid.  409,  there  was  evidence,  in  Mr.  Digh- 
ton's  own  handwriting,  that  ///'■  trust  stocks  had  been  sold,  and  the  money  laid  out  from 
time  to  time  in  the  purchase  of  land.']  ||  See  Liebman  v.  Harcourt,  2  Meriv.  513.  ||  [So, 
if  it  appears  on  the  face  of  the  conveyance  (whether  by  recital  or  otherwise)  that  the 
purchase  was  made  with  money  of  a  third  person,  that  will  create  a  trust  in  his 
favour.  As  in  the  principal  case,  Deg.  v.  Deg,  2  P.  Wins.  414  ;  Ryal  v.  Ryal,  ubi 
supra;  Young  v.  Peachy,  2  Atk.  257.] 


USES  AND  TRUSTS.  203 

(C)  Resulting  Trust,  or  Trust  by  Implication. 

So,  where  a  testator  empowered  the  executor  to  lay  out  the  'personal  estate 
in  land,  and  settle  it  on  A  and  his  heirs ;  and  the  executor  being  about  to 
purchase,  told  A's  mother  of  it,  and  asked  her  consent,  but  took  the  con- 
veyance in  his  own  name,  and  no  trust  in  writing  was  declared;  but  it 
was  proved  that  he  at  several  times  declared  it  must  be  sold  to  make  A 
satisfaction  ;  yet  the  court  (though  inclined  to  decree  a  conveyance  to  A. 
the  executor  being  dead  insolvent)  declared  it  could  not,  because  there 
was  no  express  proof  of  the  application  of  the  trust  money. 
Ch.  Prec.  168,  pi.  139,  Halcot  v.  Markant. 

{R.  Sowden  by  marriage  settlement  covenanted  to  pay  money  to  trus- 
tees to  be  laid  out  in  the  purchase  of  lands.  He  did  not  pay  the  money, 
but  purchased,  at  a  price  but  little  above  the  amount  of  it,  a  freehold  estate, 
which  was  conveyed  to  him  and  his  heirs.  And  Lord  Kenyon  decreed 
that  it  should  be  subject  to  the  trust,  and  said  he  conceived  the  principle 
established  to  be,  that  where  a  man  is  bound  I1}  to  do  an  act,  and  he  does 
what  mav  enable  him  to  do  the  act,  it  shall  be  taken  to  have  been  done 
by  him  with  the  view  of  doing  that  which  he  was  bound  to  do. 

1  Bro.  C.  C.  582,  Sowden  v.  Sowden ;  C.  T.  T.  80,  Lechmere  v.  Lechmere,  S.  P. ; 
3  P.  Will.  211,  S.  C.  {i{  See  4  Ves.  J.  108,  Perry  v.  Phelps ;  10  Yes.  J.  510,  Lench 
v.  Lench.} 

[It  is  a  general  rule,  that  where  lands  are  devised  for  a  particular  pur- 
pose, what  remains  after  such  purpose  is  satisfied  shall  result  to  the  heir 
at  law  of  the  testator.  Thus  if  lands  are  devised  to  executors  for  payment 
of  debts  and  legacies,  after  payment  of  debts  and  legacies,  the  executors 
will  be  trustees,  as  to  the  surplus,  for  the  heir  at  law ;  (a)  though  the  ex- 
ecutors have  no  legacy,  and  the  heir  at  law  has  an  express  one. (b) 

(a)  Hobart  v.  Countess  of  Suffolk,  2  Vern.  645.  (6)  Starkey  v.  Brooke,  1  P.  Wms. 
390.  ||  See  Stanley  v.  Stanley,  16  Ves.  491 ;  Chambers  v.  Brailsfurd,  18  Ves.  368  ; 
2  Meriv.  25 ;  Stansfield  v.  Habergham,  10  Ves.  273  ;  1  Sand,  on  Uses,  c.  3,  \  7.  || 

So  where  A  devised  lands  to  trustees  to  sell,  and  to  dispose  of  the 
money  as  he  should  appoint,  and  for  want  of  appointment  to  his  four 
nephews,  A  appointed  several  sums  to  be  paid  to  different  persons,  which 
sums  did  not  amount  to  the  value  of  the  land,  it  was  holden  that  the  sur- 
plus resulted  to  the  heir. 

City  of  London  v.  Garway,  2  Vern.  571. 

So  where  A  devised  to  his  wife  a  rent-charge  for  thirteen  years  for 
payment  of  debts,  and  devised  lands  to  his  wife  in  augmentation  of  her 
jointure,  it  was  holden  that   the  surplus  of  the  rent-charge,  after  the 
debts  were  paid,  resulted  to  the  heir. 
Wych  v.  Packington,  11  Br.  P.  C.  372. 

So,  where  a  rent-charge  was  devised  to  be  sold  for  payment  of  legacies 
to  the  amount  of  800?. ;  but  if  the  rent-charge  sold  for  1000?.,  then  an 
additional  legacy  of  100?.  was  given  to  B,  and  another  of  100?.  was  given 
to  C,  it  was  holden,  that  if  the  rent-charge  sold  for  above  800?.  and  less 
than  1000?.,  the  residue,  above  800?.,  would  result  to  the  heir  at  law,  and 
not  be  divided  between  B  and  C. 

Stonehouse  v.  Evelyn,  2  P.  AVms.  253. 

So,  where  A  devised  her  real  and  personal  estates  to  trustees  in  trust,  to 
sell  and  pay  debts,  and  to  pay  the  residue  to  five  persons,  to  be  equally 
divided  between  them,  share  and  share  alike,  (which  words  in  a  will  create 
a  tenancy  in  common,  1  P.  Wms.  700,  2  P.  Wms.  282 ;)  and  one  of  the  re- 


204  USES  AND  TRUSTS. 

(C)  Resulting  Trust,  or  Trust  by  Implication. 

siduary  legatees  died  in  the  lifetime  of  the  testatrix,  the  court  held  that  this 
was  a  resulting  trust  (as  to  the  share  in  the  real  estate  of  the  residuary  lega- 
tee, who  died  in  the  testatrix's  lifetime)  for  the  benefit  of  the  heir  at  law. 
And  upon  a  similar  bequest  of  personal  estate,  it  seems  the  share  of  the 
legatee  so  dying  would  go  according  to  the  statute  of  distributions. 

Digby  v.  Legard,  3  Cox's  P.  Wms.  22 ;  Akerold  v.  Srnithson,  Ibid.  S.  P. ;  Sand,  on 
Uses,  245  ;  1  P.  Wms.  700 ;  2  P.  Wms.  532. 

So,  where  lands  were  devised  to  be  sold,  and  part  of  the  money  arising 
by  the  sale  was  given  to  charitable  uses,  and  the  residue  of  the  money  was 
given  over,  it  was  holden  that  the  part  given  in  mortmain  should  result 
to  the  heir  at  law,  and  not  go  to  the  residuary  legatees. 

Gravenor  v.  Hallum,  Ambl.  643  ;  ||Gibbs  v.  Rumsey,  2  Ves.  &  Bea.  294. || 

So,  where  a  testator  gave  a  legacy  to  his  executors  by  name,  and  then 
devised  his  copyhold  to  A,  he  paying  his  executors  1000/.,  and  after 
payment  of  debts  and  legacies,  gave  the  residue  to  a  charity,  it  was 
holden  that  the  1000/.,  being  a  charge  on  the  real  estate,  and  not  well 
disposed  of  by  reason  of  the  mortmain  act,  the  heir  at  law  was  entitled 
to  it  by  way  of  resulting  trust. 

Arnold  v.  Chapman,  1  Ves.  108. 

So,  where  the  testator  directed  the  rest  and  residue  of  his  real  and  per- 
sonal estates  to  be  sold  by  trustees,  and  thereout  to  pay  annuities  and  lega- 
cies, and  then  to  pay  the  surplus  to  A  B  for  her  life ;  upon  the  death  of  A 
B  it  was  holden,  that  so  much  of  the  surplus  as  arose  from  the  real  estate 
was  a  resulting  trust  for  the  heir  at  law,  and  the  rest  for  the  next  of  kin. 

Robinson  v.  Taylor,  2  Bro.  Ch.  R.  589 ;  {11  Ves.  J.  87,  Berry  v.  Usher,  S.  P.} 

So,  where  a  testatrix,  having  an  estate  which  came  to  her  ex  parte  ma- 
ternti,  on  her  marriage  conveyed  the  same  to  trustees  to  such  uses  as  she 
should  direct,  with  remainder  to  her  own  right  heirs ;  and  afterwards  by 
will  directed  the  estate  to  be  sold,  the  money  to  be  paid  out  of  the  funds, 
and  the  trustees  to  permit  the  husband  to  receive  the  interest  for  his  life  ; 
and  then,  after  deducting  3500?.  to  certain  uses  which  vested  in  C  D,  and 
after  paying  1000/.  to  A  B,  to  pay  the  residue  to  three  persons ;  and  by  a 
codicil  gave  her  husband  a  power  of  appointing  the  3500/.  in  case  C  D 
should  many  without  his  consent;  A  B  died  in  the  testatrix's  lifetime  be- 
fore the  codicil  made,  but  the  testatrix  took  no  notice  thereof  in  the  codicil ; 
it  was  holden,  that  the  1000/.  were  to  be  considered  as  real  and  not  personal 
estate,  and  resulted  to  the  heir  at  law  of  the  testatrix  ex  parte  maternd. 

Ilutcheson  v.  Hammond,  3  Bro.  Ch.  R.  128. 

So,  where  a  testator  directed  real  estate  to  be  sold,  and  the  money  arising 
from  the  sale  to  be  invested  in  the  funds,  and  then  ordered  the  residue 
of  his  personal  estate  to  be  laid  out  in  the  funds,  to  remain  there  for  ten 
years,  and  at  the  end  thereof  gave  the  same  to  his  next  of  kin  ;  the  Chan- 
cellor held,  that  the  next  of  kin  in  that  case  must  mean  next  of  kin  at 
the  time  of  the  death  ;  and  the  testator  having  but  one  brother  who  fell 
within  that  description,  and  he  having  died  within  the  ten  years,  the 
legacy  was  lapsed,  and  so  much  as  was  produced  by  the  real  estate  must 
revert  to  the  heir  at  law  of  the  testator,  and  so  much  as  was  personalty 
to  the  representatives  of  the  brother. 

Spink  v.  Lewis,  3  Br.  Ch.  R.  355. 

So,  where  a  testator  devised  his  real  and  personal  estate  to  his  executor 


USES   AND   TRUSTS.  205 

(C)  Resulting  Trust,  or  Trust  by  Implication. 

in  trust  to  pay  debts  and  legacies,  and  afterwards  gave  the  rest  and  re- 
sidue to  the  executor,  but  declared,  that  the  only  purpose  for  which  he 
devised  his  real  estate  was,  that  he  might  subject  it  to  his  debts ;  it  was 
holden,  that  so  much  of  the  real  estate  as  was  not  applied  to  the  debts 
should  go  to  the  heir. 

Halliday  v.  Hudson,  3  Ves.  jun.  210. 

||  So  where  B,  Earl  of  Harborough,  devised  all  his  manors,  advowsons, 
&C,  to  trustees  to  pay  to  the  succeeding  earl  1000Z.  per  annum  for  life, 
and  directed  that  the  surplus  rents  during  the  life  of  the  earl  (annuitant) 
should  be  laid  out  in  the  purchase  of  lands,  to  be  settled  to  such  uses  as  the 
testator's  other  lands  stood  settled  after  the  death  of  the  said  earl ;  and  after 
the  demise  of  the  annuitant  the  trustees  were  to  stand  seised  to  the  use  of 
the  first  and  second  sons  of  the  earl  in  tail  successively  with  remainder 
over,  the  question  was,  Who  was  to  present  to  the  advowsons  during  the 
life  of  the  annuitant  ?  The  Lord  Chancellor  determined  that  the  trustees 
had  no  pretence  of  right,  and  that  the  right  of  presentation  not  being  dis- 
posed of  during  the  life  of  the  earl  (annuitant)  resulted  to  the  heir. 

Sherrard  v.  Ld.  Harborough,  Anibl.  165  ;  and  sec  Townsend  v.  Bishop  of  Norwich, 
1821,  1  Sand,  on  Uses,  330.  And  as  to  cases  of  resulting  trusts,  see  Wright  v. 
Wright,  16  Ves.  188 ;  Nash  v.  Smith,  17  Ves.  29 ;  Williams  v.  Coade,  10  Ves.  500 ; 
Hill  v.  Cock,  1  Ves.  &  Bea.  173  ;  Maugham  v.  Mason,  Ibid.  410;  Hooper  v.  Goodwin, 
18  Ves.  156.11  - 

But  this  rule,  that  where  lands  are  devised  for  a  particular  purpose, 
after  the  purpose  satisfied,  there  is  a  resulting  trust  for  the  heir  at  law, 
admits  of  several  exceptions.  Thus,  Lord  Hardwicke  said,  if  J  S  de- 
vised lands  to  A  to  sell  them  to  B  for  the  particular  advantage  of  B, 
that  advantage  is  the  only  purpose  to  be  served  according  to  the  intent 
of  the  testator,  and  to  be  satisfied  by  the  mere  act  of  selling,  let  the 
money  go  where  it  would ;  and  that  there  was  no  precedent  of  a  result- 
ing trust  in  such  a  case.  So,  if  A  devised  lands  to  J  S  to  sell  to  the 
best  price  to  B,  or  to  lease  for  three  years  at  such  a  fine,  there  could  be 
no  resulting  trust  to  the  heir  of  the  testator. 

1  Atk.  619. 

Again,  a  testator  devised  to  trustees  to  sell,  and  to  dispose  of  the  money 
arising  by  the  sale,  as  they,  or  the  major  part  of  them,  should  think  pro- 
per ;  he  having  previously  intimated  an  intention  of  giving  the  money  to 
charitable  uses.  Here  the  heir  at  law  can  have  no  resulting  trust ;  for  a 
man  empowering  others  to  sell  may  disinherit  his  heir,  as  well  as  by  his 
own  actual  disposition.  Nor  can  his  trustees  have  any  beneficial  inte- 
rest ;  for  his  giving  his  estates  to  persons  whom  he  names  trustees  to  such 
purposes  as  they,  or  the  major  part  of  them,  shall  judge  fit,  plainly  shows 
he  intended  them  no  benefit,  but  only  an  authority. 

Cook  v.  Duckenfield,  2  Atk.  562. 

So,  a  testator  devised  to  his  cousin  T  M,  by  name,  all  his  messuage, 
&c.,  in  trust  to  sell  for  the  payment  of  all  his  debts  and  legacies  within 
a  year  after  his  death,  and  made  him  executor,  but  gave  him  no  legacy, 
though  he  was  as  nearly  related  to  him  as  his  heir  at  law.  It  was  holden 
by  two  Lords  Commissioners  against  one,  that  there  should  be  no  result- 
ing trust ;  for  then  the  executor,  who  was  taken  notice  of  as  his  cousin, 
would  have  nothing  but  his  labour  for  his  pains. 

Coningham  v.  Mellish,  Pr.  Ch.  31;  1  Eq.  Co.  Abr.  273,  S.  C.  ||See  Dawson  v. 
Clark,  15  Ves.  409. || 

S 


206  USES   AND    TRUSTS. 

(C)  Resulting  Trust,  or  Trust  by  Implication. 

.  So,  a  testator  by  his  will  made  his  dearly  beloved  wife  sole  heiress  and 
executrix  of  all  his  real  and  personal  estate,  to  sell  and  dispose  thereof 
at  her  pleasure,  and  to  pay  his  debts  and  legacies,  and  gave  his  brother 
(who  was  his  next  of  kin  and  heir)  five  pounds.  It  was  decreed,  that  the 
testator's  wife  was  entitled  to  the  premises  devised  for  her  own  benefit, 
and  that  there  was  no  resulting  trust  to  the  heir  at  law  of  the  testator : 
that  the  devise,  that  the  wife  should  be  sole  heiress  of  the  real  estate, 
did  in  every  respect  place  her  in  the  stead  of  the  heir,  and  not  as  a  trustee 
for  him :  that  it  was  the  plainer  by  reason  of  the  language  of  tenderness 
and  affection,  his  dearly  beloved  wife,  which  must  intend  to  her  something 
beneficial,  and  not  what  would  be  a  trouble  only :  and  what  made  it  still 
stronger  was,  that  the  heir  was  not  forgotten,  but  had  a  legacy  of  5?. 
left  him. 

Rogers  v.  Rogers,  3  P.  Wins.  193 

So,  a  testator  devised  his  real  estate  to  his  sister  in  trust,  tosell,  and 
with  the  produce  of  the  sale  to  pay  his  debts  and  certain  pecuniary  lega- 
cies ;  and  after  payment  of  his  debts  and  legacies,  gave  her  the  residue 
of  his  personal  estate.  Lord  Talbot  held,  that  there  was  no  resulting 
trust  for  the  heir ;  and  that  the  sister  should  have  the  whole  residue, 
after  the  sale  of  the  estate,  both  of  the  money  arising  by  the  sale,  and 
of  the  personal  estate. 

Mallabar  v.  Mallabar,  Ca.  temp.  Talb.  78. 

A  testator  devised  the  advowson  of  a  church  to  his  mother-in-law, 
willing  and  desiring  her  to  sell  and  dispose  of  the  same  to  Eaton  College, 
and  on  their  refusal,  to  Trinity  College  in  Oxford  ;  and  on  the  refusal  of 
both  those  Societies,  to  any  of  the  Colleges  in  Oxford  or  Cambridge.  It 
was  decreed,  that  there  was  in  this  case  no  resulting  trust  to  the  heirs  at 
law  of  the  testator,  but  a  devise  of  the  beneficial  interest  to  the  testator's 
mother-in-law,  with  an  injunction  to  sell  to  particular  societies. 

Hill  v.  Bishop  of  London,  1  Atk.  018.  ||  See  the  cases  collected  in  Mr.  Sanders's 
note ;  and  see  1  Sand,  on  Uses  and  Trusts,  333,  (4th  edit.)|| 

A  by  his  will  gave  all  his  real  estate  to  trustees  to  sell  and  dispose  of 
the  whole,  with  his  personal  estate,  for  payment  of  his  debts,  legacies, 
and  performance  of  his  will ;  and  gave  several  legacies,  and,  among  the 
rest,  1200/.  to  be  applied  to  charitable  uses  within  the  mortmain  act ; 
and  then  directed  the  trustees  to  place  out  all  the  residue  of  his  estate 
and  interest  therein  upon  securities,  and  divide  among  several  persons. 
The  whole  of  the  1200/.  being  a  void  devise,  the  question  was,  Whether 
it  should  go  to  the  heir  at  law,  or  to  the  residuary  legatees  ?  Lord  Hard- 
wicke  was  of  opinion,  that  the  money  which  should  arise  by  sale  of  the 
real  estate,  was  turned  into  personal  by  the  testator,  and  so  intended  ; 
and  therefore  the  heir  at  law  had  no  claim  to  it. 

Durour  v.  Motteux,  1  Ves.  320. 

A  devise  was  in  trust,  among  other  things,  to  pay  4?.  a  year,  arising 
out  of  real  estate,  to  a  charity.  This  charge  being  void  by  the  statute 
of  mortmain,  it  was  holden  that  it  did  not  go  to  the  heir  at  law,  but  sunk 
for  the  benefit  of  the  specific  devise,  as  arising  out  of  his  estate. 

Wright  v.  Row,  1  Bro.  Cli.  R.  01 ;  {4  Ves.  J.  811,  Kennell  v.  Abbott;  12  Ves.  J. 
497,  Baker  v.  Hall,  ace.  j 

A  devised  freehold  estates  to  trustees  in  trust  by  rents  and  profits,  or  by 
sale  or  mortgage,  to  pay  debts  and  legacies  which  his  personal  estate  should 


USES  AND  TRUSTS.  207 

(C)  Resulting  Trust,  or  Trust  by  Implication. 

not  be  sufficient  to  discharge,  and  subject  thereto,  in  case  T  B  should 
attain  twenty-one,  in  trust  for  him  and  his  heirs.  It  was  contended,  that 
the  surplus  profits  of  the  estates,  after  payment  of  the  annuities  left  by 
the  will  and  the  interest  of  the  debts,  were  undisposed  of  until  T  B  should 
attain  twenty-one;  and  consequently,  the  heir  at  law  was  entitled  to 
them.  But  the  court  held  this  a  complete  devise  to  the  trustees  until  T 
B  should  attain  twenty-one  ;  and  that  the  surplus  profits,  after  the  lega- 
cies, annuities,  and  interest  of  debts  paid,  should  be  applied  to  sink  the 
principal  of  the  debts. 

Pophaui  v.  Lady  Aylesbury,  Ambl.  68.] 

{ The  vendor  of  lands,  even  after  he  has  completed  the  title  to  the  vendee, 
has  an  equitable  lien  on  the  land  for  the  purchase-money  which  remains 
unpaid,  though  there  is  no  special  agreement  to  that  effect.  A  bargain  and 
sale  must  be  for  money  paid,  otherwise  it  is  in  trust  for  the  bargainor.  If 
an  estate  is  sold,  and  no  part  of  the  money  paid,  the  vendee  is  a  trustee  ; 
and  if  part  be  paid,  he  is  a  trustee,  as  to  that  which  is  unpaid.  _  This  lien 
is  good,  not  only  against  the  vendee  himself,  but  also  against  his  heirs,  or 
any  claiming  under  him  as  purchaser  with  notice  of  the  equity.  And  if 
the  vendee  becomes  a  bankrupt,  his  assignees  take  the  land  subject  to  the 
lien,  even  though  they  have  no  notice  of  it ;  for  they  take  the  land  only  as 
the  bankrupt  himself  held  it.  The  lien,  however,  will  not  exist,  if  it  ap- 
pears to  have  been  the  intention  of  the  parties  that  there  should  be  none!1}. 
As  where  the  vendor  takes  a  mortgage  on  the  land  for  part,  and  a  note 
for  the  residue ;  or  where  he  takes  a  pledge  of  distinct  property,  as  of 
stock,  or  a  mortgage  upon  other  land :  for  these  circumstances  show  that 
the  parties  intended  there  should  be  no  security,  or  that  other  property 
should  be  substituted  as  the  security  in  the  place  of  the  land  itself. 

1  Vern.  267,  Chapman  v.  Tanner;  3  Atk.  272,  Pollexfen  v.  Moore:  9  Mod.  153, 
Charles  v.  Andrews ;  2  Ves.  622,  Walker  v.  Preswick ;  2  Dick.  730,  Smith  v.  Ilib- 
bard;  1  Bro.  C.  C.  301,  Cator  v.  Bolingbroke  ;  Ibid.  420,  Blackburn  v.  Gregson : 
6  Ves.  J.  475,  Austen  v.  Halsey ;  9  Ves.  J.  209,  Trimmer  v.  Bayne ;  3  Bos.  &  Pul. 
183,  Elliott  v.  Edwards  ;  2  Wash.  141,  Cole  v.  Scott,  }i}  2  Vern.  281,  Bond  v.  Kent ; 
6  Ves.  J.  752,  Nairn  v.  Prowse.  In  Fawell  v.  Heelis,  Ambl.  724,  Lord  Bathurst  held 
that  a  vendor  who  executed  a  deed  and  took  a  bond  for  the  purchase-money  had  no 
lien.  Sed  qucere;  and  see  the  cases  above  referred  to,  and  2  Eq.  Abr.  682,  n.,  tiil- 
bons  v.  Baddall ;  Sugden,  353 — 357.} 

||  So,  where  a  testatrix  devised  all  her  real  estate  to  her  cousins,  M  A 
and  A  J,  their  heirs  and  assigns  for  ever,  subject  nevertheless  to  and 
chargeable  with  the  payment  of  several  annuities,  all  of  which  annuities 
she  directed  to  be  paid  quarterly ;  and  she  charged  her  real  estate  with 
the  payment  thereof;  and  she  gave  her  personal  estate  to  R  A,  E  B,  and 
Gr  A,  their  executors  and  administrators,  subject  to  and  chargeable  with 
the  payment  of  her  just  debts  and  legacies,  thereinafter  mentioned  ;  and 
gave  the  surplus  rents  of  her  estates  to  several  persons,  for  their  lives 
only ;  Lord  Chancellor  Eldon  held,  that  on  the  intention  to  be  collected 
from  the  whole  context  of  the  will,  this  was  a  beneficial  devise _ to- M  A 
and  A  J  in  fee,  subject  to  the  charges,  and  not  a  resulting  trust  in  favour 
of  the  heir,  as  to  the  surplus  beyond  the  charges.  His  lordship  said  that 
the  principles  applicable  to  the  case  were  very  well  settled.  He  adopted 
those  of  Hill  v.  The  Bishop  of  London,  as  affording  the  grounds  on  which 
Lord  Hardwicke  proceeded ;  "  but  I  will  point  out  the  nicety  of  distinc- 
tion, as  it  appears  to  me,  upon  which  this  court  has  gone.  If  I  give  to 
A  and  his  heirs  all  my  real  estate,  charged  with  my  debts,  that  is  a  de- 


208  USES  AND  TRUSTS. 

(C)  Resulting  Trust,  or  Trust  by  Implication. 

vise  to  him  for  a  particular  purpose,  but  not  for  that  purpose  only.     If 

the  devise  is  upon  trust  to  pay  my  debts,  that  is  a  devise  for  a  particular 

purpose,  and  nothing  more ;  and  the  effect  of  these  two  modes  admits 

just  this  difference :  the  former  is  a  devise  of  an  estate  of  inheritance 

,  for  the  purpose  of  giving  the  devisee  the  beneficial  interest,  subject  to  a 

particular  purpose ;  the  latter  is  a  devise  for  a  particular  purpose,  with 

no  intention  to  give  him  any  beneficial  interest." 

King  v.  Dennison,  1  Ves.  &  Bea.  273.  See  Southouse  v.  Bate,  2  Ves.  &  B.  396, 
where  the  words  of  the  will  were  held  to  give  a  resulting  trust. 

So,  where  there  was  a  bequest  of  the  residue  of  moneys,  arising  out 
of  the  sale  of  a  real  estate,  and  the  residue  of  personal  estate,  unto  trus- 
tees and  executors,  to  be  disposed  of  unto  such  persons  and  in  such  man- 
ner as  they  in  their  discretion  should  think  proper,  it  was  held  that  they 
had  an  absolute  interest,  and  not  a  trust. 

Gibbs  v.  Rumsey,  2  Ves.  &  Bea.  294  ;  and  see  on  this  subject  the  cases  of  Attorney- 
General  v.  Wansey,  15  Ves.  231  :  Dawson  v.  Clarke,  Ibid.  409  ;  Wright  v.  Wright, 
,16  Ves.  188  ;  Nash  v.  Smith,  17  Ves.  29;  Sneddon  v.  Goodrich,  8  Ves.  481 ;  Williams 
v.  Coade,  10  Ves.  500 ;  Hill  v.  Cock,  1  Ves.  &  B.  173  ;  Maugham  v.  Mason,  Ibid.  410; 

Hooper  v.  Goodwin,  18  Ves.  156.  |[ 

pWhen  title  to  land  is  taken  in  the  name  of  one  person  and  the  money 
is  paid  by  another,  there  is  a  resulting  trust,  which  the  law  implies  in 
favour  of  him  who  pays  the  money;  and  this  fact  may  be  established  by 
parol  evidence. 

Jackman  v.  Ringland,  4  Watts  &  S.  149.  See  M'Guire  v.  M'Gowen,  4  Desaus.  491 ; 
Rotsford  v.  Burr,  2  Johns.  Ch.  409  ;  3  A.  K.  Marsh.  477. 

Where  there  is  a  resulting  trust  under  a  conveyance,  it  must  arise' at 
the  time  of  the  execution  of  the  deed. 
Rogers  v.  Murray,  3  Paige,  390. 

A  resulting  trust  cannot  be  raised  against  the  intention  of  the  parties. 
White  v.  Carpenter,  2  Paige,  217. 

If  a  joint  purchase  be  made  in  the  name  of  the  co-purchasers,  parol 
evidence  is  admissible  to  prove  the  fact,  and  he  will  be  considered  a  trus- 
tee for  a  moiety  for  the  other. 

Powell  v.  The  Monson  and  Brimfield  Man.  Company,  3  Mason,  347 ;  3  Litt.  399 ; 
4  Desaus.  486. 

But  parol  evidence  of  a  resulting  trust  must  be  very  clear  to  sustain 
the  trust. 

Snelling  v.  Utterback,  1  Bibb,  609. 

A  resulting  trust  is  never  raised  in  favour  of  a  grantor,  in  opposition 
to  the  express  terms  of  his  conveyance. 

Squire  v.  Harder,  1  Paige,  494;  Leggett  v.  Dubois,  5  Paige,  114. 

An  attorney  is  bound  to  give  sufficient  advice  to  his  client ;  and  if  any 
advantage  or  property  come  to  him  by  his  ignorance  or  the  neglect  of  the 
attorney,  he  shall  be  trustee  therefor  for  the  benefit  of  the  person  who 
would  be  entitled  to  it,  had  he  known  and  done  his  duty. 

Dulkcy  v.  Wilford,  2  Clark  &  Fin.  177.    See  Giddings  v.  Eastman,  5  Paige,  561. 

A  trustee  cannot  acquire  an  outstanding  title  to  the  trust  property ; 
and  a  conveyance  to  him  in  his  own  right  will  enure  to  him  as  trustee. 

Morrison  v.  Caldwell,  5  Monr.  435 ;  Morgan's  Heirs  v.  Boon,  4  Monr.  297. 

If  one  of  several  devisees  in  remainder  buy  in  the  particular  estate, 
avowedly  for  the  benefit  of  all  the  devisees,  he  holds  that  particular  es- 
tate in  trust  for  those  in  remainder. 

Anderson  v.  Bacon,  1  A.  K.  Marsh.  51. 


USES   AND   TRUSTS.  209 

(D)  What  shall  be  deemed  an  Advancement,  and  what  a  Trust. 

Chancery  will  relieve  against  a  fraud,  by  converting  the  person  guilty 
of  it  into  a  trustee  for  those  who  have  been  injured  by  such  fraud. 

Brown  v.  Lynch,  1  Paige,  47  ;  Perkins  v.  Hays,  1  Cooke,  16G.  See  2  Clurk  So  Fin. 
177  ;  Giddings  v.  Eastman,  5  Paige,  561. 

If  an  agent  employed  to  purchase  an  estate  becomes  the  purchaser  for 
himself,  he  is  to  be  considered  a  trustee  for  his  principal. 

Lees  v.  Nuttall,  1  Russ.  1-  My.  53  ;  S.  C,  Tarn.  282 ;  1  My.  &  Keen,  819 ;  5  Paige, 
501  ;  2  Clark  &  Fin.  177  ;  Sweet  v.  Jacobs,  6  Paige,  355  ;  Carter  v.  Palmer,  1  Irish 
Eq.  R.  289. 

If  land  be  purchased  by  one  party  and  the  conveyance  be  made  to 
another,  a  trust  will  result  to  the  person  paying  the  money. 

Newton  v.  Morgan,  2  Harr.  225  ;  Bank  of  the  United  States  v.  Carrington,  7  Leigh, 
366 ;  Henderson  v.  Hoke,  1  Dev.  &  Bat.  149. 

But  when  the  purchase  is  made,  and  the  money  paid  by  the  same  per- 
son, and  the  transaction  involves  nothing  more  than  a  violation  of  a 
parol  agreement  to  purchase  for  another,  equity  will  not  decree  the  pur- 
chaser to  be  a  trustee. 

4  Watts  &  S.  149. 

If  one  undertakes  to  procure  a  deed  of  land  for  another,  who  pays  the  ' 
consideration  or  purchase-money,  in  accordance  with  a  previous  agree- 
ment, but  fraudulently  takes  the  conveyance  to  himself,  such  agent  may 
be  compelled,  by  bill  in  equity,  to  convey  the  land  to  him  who  made  the 
contract  and  paid  the  consideration. 

Pillsbury  v.  Pillsbury,  17  Maine,  107. 

A  resulting  trust  cannot  be  claimed  by  a  party  who  pays  only  a  part 
of  the  consideration  on  the  purchase  of  land  conveyed  to  another,  unless 
it  be  some  definite  part  of  the  whole  consideration,  as  one-third,  one- 
half,  or  the  like. 

Sayre  v.  Townsend,  15  Wend.  647. 

If  an  agent  locate  land  for  himself,  which  he  ought  to  locate  for  his 
principal,  he  is  in  equity  a  trustee,  and  liable  to  account  to  his  principal. 

Massie  v.  Watts,  6  Cranch,  148.  See  Phillips  v.  Crammond,  2  Wash.  C.  C.  R. 
441. 

Where  the  grantee  in  a  conveyance  of  a  tract  of  land,  in  an  account 
between  himself  and  the  grantor,  made  out  subsequent  to  the  execution  of 
the  deed,  had  given  the  grantor  credit  for  part  of  the  proceeds  of  the  land 
conveyed  by  deed ;  held,  that  this  amounted  to  a  declaration  of  trust. 

Prevost  v.  Gratz,  Pet.  C.  C.  R.  364.0 

(D)  What  shall  be  deemed  an  Advancement,  and  what  a  Trust. 

It  is  a  settled  rule,  that  whenever  a  father  purchases  in  the  name  of  a 
child  unprovided  for,  it  is  intended  as  a  provision,  and  not  a  trust,  unless 
it  be  otherwise  proved,  and  the  proof  lies  on  the  plaintiff.  This  was  held 
80  before  the  statute  of  frauds,  &c,  and  is  stronger  since,  because  declara- 
tions of  trusts  ought  to  be  in  writing ;  though  in  other  cases  a  trust  will 
result  where  it  appears  that  another  paid  the  money. 

2  Freem.  252,  Shales  v.  Shales ;  [|Glaister  v.  Hewer,  8  Ves.  199. ||  /3When  a  parent 
purchases  lands  in  the  name  of  his  child  under  age,  it  will  be  generally  considered  as 
an  advancement.  Jackson  v.  Matsdorf,  11  Johns.  91.  See  Stileman  v.  Ashdown, 
2  Atk.  479  ;  Hamilton  v.  Bradley,  5  Hayw.  137. gl 

And  a  distinction  has  been  taken  where  a  parent  makes  a  purchase  in 
Vol.  X.— 27  s  2 


210  USES  AND   TRUSTS. 

(D)  What  shall  be  deemed  an  Advancement,  and  what  a  Trust. 

the  name  of  an  unadvanced  child,  and  where  in  the  name  of  a  child 
already  advanced.  In  the  former  case,  it  was  only  an  advancement  for 
the  child ;  in  the  latter,  a  trust  for  the  parent. 

2  Chan.  Ca.  231,  Elliot  v.  Elliot. 

The  reason  why,  where  the  father  purchases  in  the  name  of  a  son  unad- 
vanced, without  any  express  declaration  of  the  trust,  this  is  an  advance- 
ment of  the  son,  and  not  a  trust  for  the  father,  is  because  between  father 
and  son  the  blood  is  a  sufficient  consideration  to  raise  a  use  to  the  son ;  and 
that  in  all  cases  whatsoever,  where  a  trust  shall  be  between  the  father  and 
son,  contrary  to  the  consideration  and  operation  of  law,  the  same  ought  to 
appear  upon  very  plain,  and  coherent,  and  binding  evidence  ;  and  not  by 
•any  argument  or  inference  from  the  father's  continuing  in  possession,  and 
receiving  the  profits,  which  sometimes  the  son  may  not  in  good  manners 
contradict,  especially  where  he  is  advanced  but  in  part.  And  if  such  in- 
ference shall  not  be  made  by  the  father's  perception  of  profits,  it  shall 
never  be  made  from  any  words  between  them  in  common  discourse;  for  in 
those  there  may  be  great  variety,  and  sometimes  apparent  contradictions. 
Now,  where  there  is  no  clear  proof  of  any  trust  between  the  father  and  son, 
the  law  will  never  imply  a  trust,  because  the  natural  consideration  of  blood, 
and  the  obligation  which  lies  on  the  father  in  conscience  to  provide  for  his 
son,  are  predominant,  and  must  overrule  all  manner  of  implications.  And 
herein  the  law  of  trusts  does  (as  it  ought  to  do)  agree  with  the  laiu  of  uses 
before  the  statute  of  H.  8 ;  and  therefore,  if  before  that  statute  the  father  had 
made  a  feoffment  to  a  stranger,  without  any  consideration,  the  law  raised 
a  use  without  any  implication  to  himself;  but  if  he  made  a  feoffment  to  his 
son,  no  use  arose  to  the  father  by  implication,  because  the  blood,  which  is 
a  sufficient  consideration,  fixed  and  settled  the  estate  in  the  son.  It  is  true, 
where  the  son  is  married  in  the  lifetime  of  his  father,  and  by  him  fully 
advanced,  and  in  a  manner  emancipated,  there  a  purchase  by  the  father, 
and  in  the  name  of  his  son,  may  be  a  trust  for  the  father,  as  much  as  if 
it  had  been  in  the  name  of  a  stranger,  because  in  that  case  all  presump- 
tions or  obligations  of  advancements  cease.  But  where  the  son  is  not  ad- 
vanced,  or  but  advanced  or  emancipated  in  part,  in  such  case  there  is  no 
room  for  any  construction  of  a  trust  by  implication ;  and  without  clear 
proofs  to  the  contrary,  it  ought-  to  be  taken  as  an  advancement  of  the  son. 

Finch,  338,  Grey  v.  Groy;  ||1  Eq.  Abr.  381;  2  Swanst.  594,  S.  C. ;  and  see  Red- 
ington  v.  Redington,  3  Ptidg.  P.  Ca.  176.  || 

||  The  son  cannot,  on  his  sick-bed,  make  a  declaration  of  trust  in  favour 
of  his  father,  so  as  to  prevent  his  wife  from  having  her  dower  of  the 
estate.  The  evidence  to  repel  the  presumption  of  advancement  must  be 
contemporaneous  with  the  purchase. 

Bateman  v.  Bateman,  2  Vera.  406;  Murless  v.  Franklin,  1  Swanst.  13. || 

So,  where  the  father  purchases  in  the  name  of  the  son,  it  has  frequently 
oecn  decreed  an  advancement,  and  not  a  trust,  though  the  father  takes 
the  profits  and  keeps  possession ;  and  though  the  father,  after  such  pur- 
chase, declares  the  trust,  yet  it  is  not  good,  unless  the  trust  be  declared 
before  or  at  the  time  of  the  purchase  ;  and  so  the  Lord  Chancellor  agreed. 

2  Chan.  Ca.  231,  Elliot  v.  Elliot. 

Likewise,  where  a  father  purchased  in  a  younger  sons  name  and  a  ne- 
phew's, lands  of  inheritance ;  and  also  purchased  a  term  for  years  (of  which 
he  himself  had  the  inheritance)  in  the  same  son's  and  the  father's  mother's 


USES   AND    TRUSTS.  211 

(D)  What  shall  be  deemed  an  Advancement,  and  what  a  Trust. 

name ;  though  the  whole  purchase-money  was  mentioned  to  be  paid  by 
the  father,  and  though  he  took  the  profits  during  his  life,  and  died  leaving 
the  son  about  eight  years  old;  and  though  a  reversion,  expectant  on  It  is 
mother  s  death,  was  settled  upon  him,  yet  the  trustees  disclaiming  any 
interest  in  the  estate,  Lord  Chancellor  held  the  son  to  be  unprovided  for, 
notwithstanding  such  reversion  after  his  mother's  death  ;  for  that  he  might 
starve  in  the  mean  time ;  and  that  the  trustees  having  disclaimed,  made 
it  all  one  as  if  the  purchase  had  been  in  the  son's  name  only. 

1  P.  Wins.  R.  Ill,  112,  Lamplugh  v.  Lamplugh.  It  was  farther  said  in  this  case, 
that  the  father's  taking  the  profits,  must  be  intended  to  have  been  done  by  him  as 
guardian  to  the  son. 

[A  father  purchased  a  copyhold  in  the  name  of  the  defendant,  his  eld- 
est son,  an  infant  of  eleven  years  old,  and  enjoyed  it  during  his  life;  and 
afterwards,  having  surrendered  it  to  the  use  of  his  will,  devised  it  to  his 
wife  for  life,  remainder  to  his  younger  children,  and  made  other  provisions 
for  the  defendant,  who  having  recovered  in  ejectment,  the  bill  was  to  be 
relieved  against  it.  Lord  Chancellor  Jeffries  conceived,  that  as  he  was 
but  an  infant  at  the  time  of  the  purchase,  the  purchase  was  an  advance- 
ment for  him,  and  not  a  trust,  notwithstanding  the  father  enjoyed  it 
during  his  life. 

Mumma  v.  Mumma,  2  Vern.  19.  • 

So,  where  a  father  purchased  a  copyhold  in  his  son's  name,  who  was 
then  eighteen  years  of  age,  and  the  father  continued  in  possession  till  his 
death,  Lord  Hardwicke  said, — I  am  of  opinion  it  should  be  considered  as 
an  advancement  for  the  son,  and  found  my  opinion  greatly  on  the  case 
of  Mumma  v.  Mumma  (supra) ;  and  though  two  receipts  are  produced 
under  the  son's  hand  for  the  use  of  the  father,  I  think  that  will  not  alter 
the  case ;  for  the  son,  being  then  under  age,  could  give  no  other  receipt 
in  discharge  of  the  tenants  who  held  by  lease  from  the  father. 

Taylor  v.  Taylor,  1  Atk.  386.] 

But  it  seems  it  had  been  otherwise,  if  the  father  had  taken  the  profits 
after  the  child 's  coming  of  age,  and  when  of  discretion  to  claim  his  right — 

As,  where  A,  a  grandmother,  purchased  an  annuity  in  the  14/.  per  cent, 
annuities  for  lives,  for  100Z.  in  the  name  of  E,  her  grand-child,  the  father 
of  E  gave  A,  the  grandmother,  a  bond  to  repay  her  the  100?.  in  case  E 
should  die  in  the  grandmother's  life ;  A  kept  the  tally,  and  received  the 
annuity  during  her  life,  and  disposed  of  it  by  her  will  to  F  another  grand- 
child ;  it  was  decreed  by  the  Chancellor,  that  the  receiving  of  the  income, 
and  keeping  the  tally,  and  no  claim  having  ever  been  made  by  E,  showed 
that  E  was  but  a  trustee  for  A,  and  that  the  bond  given  by  the  father,  in 
which  no  mention  was  made  of  a  trust,  did  not  make  it  to  be  so. 

P.  Wms.  II.  607,  608,  Loyd  v.  Read. 

Likewise  where  a  father  purchases  the  reversion  and  inheritance  in  his 
own  name  of  lands  of  which  a  lease  for  three  lives  was  then  in  being,  and 
afterwards  purchases  the  lease  for  three  lives  in  his  son's  name,  it  is  de- 
creed a  trust,  and  not  an  advancement. 

Finch.  373,  Hodgkinson  v.  Moor. 

[In  the  manor  of  II,  it  is  the  custom  to  grant  copyholds  for  three  lives 
successive.  S  D  purchased  copyhold  premises  holden  of  this  manor,  and 
took  the  grant  to  himself  and  M,  his  wife,  and  W  his  eldest  son,  to  take  in 
succession  for  their  lives. — By  his  will  he  devised  all  his  interest  in  these 
copyholds  (amongst  others)  to  his  youngest  son.    There  were  no  other  cir- 


°V2  USES   AND   TRUSTS. 

(D)  What  shall  be  deemed  an  Advancement,  and  -what  a  Trust. 

cumstances  in  this  case;  and  the  question  was,  Whether  this  was  an  ad- 
vancement to  W,  or,  whether  he  was  a  trustee  for  his  father  ?  The  court, 
after  full  consideration,  determined,  that  this  was  to  he  taken  as  an  advance- 
ment for  the  eldest  son. — The  Chief  Baron,  in  delivering  the  judgment 
of  the  court,  observed,  that  in  the  cases  cited  the  circumstance  of  the  nomi- 
nee heing  a  child  of  the  purchaser,  had  been  considered  as  a  circumstance 
of  evidence  to  rebut  the  resulting  trust,  and  not  as  raising  a  consideration 
in  itself,  which  seemed  a  more  simple  way  of  treating  it.  That  the  cir- 
cumstance of  the  custom  of  the  manor  requiring  two  nominees  besides  the 
purchaser  had  been  insisted  upon  in  the  present  case,  as  taking  off  the  in- 
ference of  an  intended  advancement,  and  had  been  relied  upon  in  that  view 
by  the  Lords  Commissioners  in  Dickinson  v.  Shaw  in  Chancery,  22d  May, 
1770,  in  which  case  also  the  grant  was  for  three  lives  successive.  But 
that,  notwithstanding  that  authority,  the  court  was  of  opinion,  this  cir- 
cumstance was  not  sufficient  to  turn  the  presumption  against  the  child. 

Dyer  v.  Dyer,  in  the  Exchequer,  Nov.  1788,  Cox's  P.  "Wins.  112,  note;]  ||  Watk. 
216  ;  2  Cox,  92,  Finch  v.  Finch,  15  Ves.  43  ;  and  see  2  Eden,  15.  )| 

But,  where  a  purchase  is  made  by  a  father  in  his  own  and  his  son's 
name,  it  shall  primd  facie  be  intended  an  advancement  for  the  son,  and 
not  presumed  a  trust,  unless  declared  so. 

Chan.  Ca.  28,  Scroope  v.  Scroope.  It  was  said  in  this  case,  that  it  was  anciently 
the  way  to  join  the  son  in  a  purchase,  to  avoid  wardship. 

[But  this  is  a  weaker  case  than  where  the  purchase  is  made  in  the  son's 
name  only ;  and  therefore  the  son  shall  not  have  the  benefit  of  survivor- 
ship as  against  a  judgment  creditor  of  the  father. 

A  father  upon  his  son's  marriage  gave  him  a  considerable  advancement ; 
and  having  several  younger  children  who  were  unprovided  for,  he  sold  an 
estate  ;  but  500/.  only  of  the  purchase-money  being  paid,  he  took  security 
for  the  remainder  in  the  name  of  himself  and  his  son.  The  father  re- 
ceived the  interest  and  great  part  of  the  principal  without  any  opposition 
from  the  son,  as  did  his  executrix  after  his  death,  the  son  writing  receipts 
for  the  interest.  A  question  being  made,  Whether  the  son  should  be  con- 
sidered as  trustee  for  his  father,  or  interested  in  his  own  right  ?  Lord 
Hardwicke  said, — No  doubt,  where  a  father  takes  an  estate  in  the  name 
of  his  son,  it  is  to  be  considered  as  an  advancement ;  but  that  is  liable  to 
be  rebutted  by  subsequent  acts.  So,  if  the  estate  be  taken  jointly,  so  as 
the  son  may  be  entitled  by  survivorship ;  that  is  weaker  than  the  former 
case,  and  still  depends  on  the  circumstances.  The  son  knew  here  that 
his  name  was  used  in  the  mortgage-deed,  and  must  have  known  whether 
it  was  for  his  own  interest,  or  only  as  trustee  for  his  father ;  and  instead 
of  making  any  claim,  his  acts  are  very  strong  evidence  of  the  latter. 
Nor  is  there  any  colour  why  the  father  should  make  him  any  further  ad- 
vancement, when  he  had  so  many  children  unprovided  for ;  and  in  using 
his  son's  name,  the  father  might  have  a  view  that  his  son  should  be  a 
trustee  rather  than  another. 

Pole  v.  Pole,  1  Ves.  70. 

A  bill  was  brought  by  an  executor  to  have  satisfaction  out  of  the  estate 
of  the  defendant's  late  father  upon  a  judgment  given  by  him  to  the  plain- 
tiff's testator.  It  appeared,  that  in  1700  the  father  made  a  small  purchase 
jointly  with  the  defendant  to  them  and  their  heirs :  that  in  1708  he  made 
another  joint  purchase  with  his  youngest  son,  and  settled  it  by  way  of  pro- 
vision for  younger  children,  and  paid  the  purchase  money  for  both  estates, 


USES   AND   TRUSTS.  213 

(E)  What  Acts  of  a  Trustee  shall  be  a  Breach  of  Trust,  &c. 

and  continued  in  possession  till  his  death,  which  happened  in  1735.  The 
sons  afterwards  entered  upon  these  estates.  It  was  insisted  on  the  part 
of  the  defendants,  that  these  two  purchases  were  to  be  considered  with  re- 
spect to  a  moiety  and  on  account  of  the  survivorship,  as  an  advancement 
of  the  sons,  and,  consequently,  they  were  entitled  to  retain  the  estate,  and 
not  liable  to  the  plaintiff's  judgment.  But  Lord  Hardwicke,  after  observ- 
ing, that  he  thought  the  cases  had  gone  full  far  enough  in  favour  of  ad- 
vancements, and  that  he  ought  not  to  carry  it  further,  said, — Here,  the 
purchase  is  in  the  names  of  the  father  and  son  as  joint-tenants :  now  this 
does  not  answer  the  purpose  of  an  advancement,  for  it  entitles  the  father 
to  the  possession  of  the  whole  till  a  division,  and  to  a  moiety  absolutely 
even  after  a  division,  besides  the  father's  taking  a  chance  to  himself  of 
being  a  survivor  of  the  other  moiety :  nay,  if  the  son  had  died  during  his 
minority,  the  father  would  have  been  entitled  to  the  whole  by  virtue  of  the 
survivorship,  and  the  son  could  not  have  prevented  it  by  severance,  he 
being  an  infant.  Suppose  a  stronger  case,  that  the  father  had  taken  an 
estate  in  the  purchase  to  himself  for  life,  with  remainder  to  his  son  in  fee, 
should  this  prevail  against  the  creditor  ?  No,  certainly ;  for  the  father 
having  the  profits  for  life,  and  the  son  only  a  remainder,  the  estate  would 
have  been  liable.  A  material  consideration  for  the  plaintiff  is,  that  the 
father  might  have  other  reasons  for  purchasing  in  joint-tenancy ;  namely, 
to  prevent  dower  upon  the  estate,  and  other  charges,  &c.  Then  consider 
how  it  stands  in  respect  of  the  creditor.  A  father  was  in  possession  of 
the  whole  estate,  and  must  necessarily  appear  to  be  the  visible  owner  of 
it ;  and  the  creditor  too  would  have  had  a  right  by  virtue  of  an  elegit  to 
have  laid  hold  of  a  moiety,  and  so  it  differs  extremely  from  all  the  other 
cases.  Now,  it  is  very  proper  that  this  court  should  let  itself  loose  as  far 
as  possible,  in  order  to  relieve  a  creditor,  and  ought  to  be  governed  by 
particular  circumstances  of  cases.  I  shall  therefore  decree  the  creditor 
in  this  case  to  be  let  in  upon  these  estates. 

Stileman  v.  Ashdown,  2  Atk.  477.]     jjSee  Hargr.  Co.  Lit.  246  a,  n.  (1).|| 

||  If  a  person  purchase  lands  in  the  name  of  his  wife,  the  wife  shall  not 
be  a  trustee  for  the  husband. 

Kingdom  v.  Bridges,  2  Vera.  67 ;  Buck  v.  Andrews,  Prec.  Cha.  1 ;  2  Vera.  120. || 

(3  Where  negroes  were  purchased  and  paid  for  by  a  debtor,  and  the 
title  made  to  his  sons,  under  the  circumstances  it  was  held  that  a  trust 
resulted  to  the  debtor  in  favour  of  creditors,  and  the  negroes  were  liable 
for  his  debts. 

Brown  v.  McDonald,  1  Hill's  Ch.  3O6.0 

(E)  What  Acts  of  a  Trustee  shall  be  a  Breach  of  Trust,  &c,  or  shall  be  deemed  to  alrer 

or  vary  the  Nature  of  it. 

Trusts  are  so  far  regarded  and  supported  in  equity,  that  regularly  no 
act  of  the  trustee  shall  prejudice  the  cestui  que  trust;  for  though  a  pur- 
chaser for  a  valuable  consideration,  without  notice,  shall  in  no  case  have 
his  title  impeached  in  equity ;  yet  the  trustee  must,  especially  in  equity, 
make  good  the  trust ;  and  my  Lord  Hobart  is  of  opinion,  that  an  action 
lies  against  him  at  common  law.(a)  But  if  one  purchases  with  notice,  then 
he  becomes  the  trustee  himself,  and  shall  be  accountable  for  every  act  of 
his,  as  the  trustee  was  ;  and  if  either  become  insolvent,  the  cestui  que  trust 
has  his  remedy  against  the  other.     The  trustee  of  a  legacy  dying  before 


214  USES   AND    TRUSTS. 

(E)  What  Acts  of  a  Trustee  shall  be  a  Breach  of  Trust,  &c. 

the  legacy  is  paid  shall  not  prejudice  the  legatee.  So,  if  a  trustee  of 
land  die  without  heir,  though  the  lord  by  escheat  will  have  the  land  at 
law,  yet  it  will  be  subject  to  the  trust  in  equity. (b) 

1  Abr.  Eq.  Ca.  384 ;  Pr.  Ch.  200,  Eales  v.  England.  [(a)But  this  opinion  of  Lore1 
Hobart  is  directly  contradicted  by  my  Lord  Hardwicke,  who  says,  that  "  a  trust  is 
where  there  is  such  a  confidence  between  the  parties,  that  no  action  at  law  will  lie ; 
but  it  is  merely  a  case  for  the  consideration  of  this  court,"  meaning  a  court  of  equity. 
2  Atk.  612.]  ||(6)This  point  appears  not  to  have  been  directly  determined.  See  the 
arguments  in  Burgess  v.  Wheate,  1  Eden,  177. || 

When  all  the  remainders  are  vested  remainders  in  tail,  the  trustees  may 
join  in  making  a  tenant  to  the  praecipe,  in  order  to  the  suffering  a  com- 
mon recovery.  But  if  any  remainder  is  in  contingency,  the  trustees  ap- 
pointed to  preserve  contingent  remainders  ought  not  to  join  in  suffering 
a  recovery  to  bar  any  such  remainder  ;  as,  where  the  remainder  was  to  the 
use  of  the  body  of  A,  (still  living,)  and  A  had  issue  C  a  son,  and  D  a 
daughter,  and  the  trustees  join  with  C  in  a  bargain  and  sale  enrolled,  for 
making  a  tenant  to  the  praecipe  to  suffer  a  common  recovery,  which  is 
suffered  accordingly,  and  C  dies,  leaving  an  infant  son :  now  if  the  son 
should  die  without  issue,  in  the  life  of  A,  in  such  case  D  would  be  heir 
of  A's  body.  This  would  be  a  breach  of  trust ;  and  in  case  of  a  purcha- 
ser having  notice,  his  title  would  not  be  good. 

2  P.  Wms,  201.  It  was  so  said  by  Talbot,  Solicitor-General,  in  the  case  of  Marlow 
v.  Smith. 

Where  a  settlement  on  the  marriage  of  A  with  M  tvas  made  by  J  S  to 
the  use  of  A  for  ninety-nine  years,  remainder  to  E  and  F,  trustees,  for 
ninety-nine  years,  remainder  to  trustees  during  the  life  of  A,  to  support 
contingent  remainders,  remainder  to  M  for  life,  remainder  to  the  first,  $c, 
son  of  the  marriage,  remainder  to  the  heirs  of  the  body  of  A,  remainder  to 
the  right  heirs  of  A;  there  being  no  issue  of  the  marriage,  and  the  re- 
mainder in  fee  being  contingent,  in  regard  the  limitation  to  A  was  for 
years  only ;  and  the  estate  not  moving  from  A  (for  if  so,  the  remainder 
limited  to  A  had  been  the  old  reversion,)  the  trustees  joined  to  destroy 
this  contingent  remainder.  On  a  bill  brought  by  a  remote  relation,  the 
court  refused  to  punish  the  trustees,  as  distinguishing  between  a  volun- 
tary settlement  and  one  made  on  a  valuable  consideration.  And  the  Mas- 
ter of  the  Rolls  said,  that  if  a  son  had  been  afterwards  born  it  would  have 
been  a  breach  of  trust ;  but  this  remainder  to  the  right  heirs  of  A  being 
a  remote  limitation,  and  not  within  the  consideration  of  the  settlement, 
equity  would  not  punish  it  as  a  breach  of  trust. 

1  P.  AVms.  358,  359,  Sir  Thomas  Tippen's  case ;  [1  Eq.  Ca.  Abr.  385,  S.  C. ;  Gilb. 
Eq.  R.  34,  S.  C] 

So,  where  a  remainder  in  tail  being  vested  in  the  first  son,  the  trustees 
joined  with  him  in  suffering  a  common  recovery  ;  it  was  held  no  breach 
of  trust,  though  against  the  consent  of  the  father  ;  for  when  such  remain- 
der was  vested  in  one  of  full  age,  a  subsequent  remainder  was  not  to  be 
regarded  ;  neither  was  it  assets  in  law  or  equity.  Cited  per  Mr.  Vernon, 
and  so  held  since  the  case  of  Sir  Thomas  Tippin,  supra. 

1  P.  Wms.  537,  Winnington  v.  Foley.  [Note,  this  decision  was  upon  an  applica- 
tion to  the  court  to  direct  the  trustee  to  join.  J 

But  where  J  S,  seised  in  fee  of  lands,  devised  the  same  to  A  and  B  and 
their  heirs,  to  the  use  of  D  his  sister,  for  life,  remainder  to  A  and  B  and 
their  heirs,  during  the  life  of  D,  in  trust  to  preserve  contingent  remainders, 


USES  AND  TRUSTS.  215 

(E)  What  Acts  of  a  Trustee  shall  be  a  Breach  of  Trust,  &c. 

remainder  to  the  use  of  the  first,  &c.,  sons  of  D,  in  tail-male  successively, 
remainder  to  the  use  of  E  M  in  fee :  testator  dying  without  issue,  D  en- 
tered and  married  C  ;  afterwards  C  and  D  his  wife,  and  E  M,  the  reniain- 
er-man  in  fee,  join  in  a  feoffment  to  (new)  trustees  to  the  use  of  C  and 
is  heirs,  and  covenant  to  levy  a  fine  to  the  (new)  trustees  to  the  same 
ses ;  and  a  fine  (as  it  seems,  though  not  stated  in  the  case)  was  accord- 
igly  levied ;  afterwards  A  and  B  (the  trustees  for  preserving,  &c,  in  the 
will,)  by  lease  and  release,  convey  the  lands  to  C  in  fee,  D  being  then  en- 
seint  of  a  son,  who  was  soon  afterwards  born,  and  named  G,  and  D  had  after- 
wards several  other  children ;  subsequent  to  which,  C,  the  father,  devised 
all  his  lands  in  general  words  to  the  said  G  for  life,  remainder  to  his  first,  &c, 
sons  in  tail-male  successively,  remainder  to  his  (C,)  the  testator's,  second 
son  by  D  for  life,  remainder  to  his  first,  &c,  sons  in  tail-male  successively, 
and  died,  leaving  several  sons,  and  D  also  died ;  on  a  bill  by  G  it  was  re- 
solved by  King,  C,  assisted  by  Lord  Chief  Justice  Raymond  and  Chief 
Baron  Reynolds,  that  the  joining  of  the  trustees  to  destroy  the  contingent 
remainders  was  a  plain  breach  of  trust ;  and  that  though  this  had  not  been 
before  judicially  determined,  yet  it  seemed  to  the  court,  in  common  sense, 
reason  and  justice,  to  be  capable  of  no  other  construction  :  and  all  parties 
were  decreed  to  join  in  making  such  an  estate  to  G  as  he  would  have 
been  entitled  to  under  the  will  of  J  S,  if  these  contingent  remainders  had 
not  been  destroyed,  i.  e.  an  estate  in  tail-male,  &c. 

2  P.  Wins.  678,  Mansell  v.  Mansell ;  Cases  in  Eq.  temp.  Talbot,  232,  S.  C.  |J  See 
Moody  v.  Walter,  16  Ves.  283  ;  Osbury  v.  Bury,  1  Ball.  &  B.  58.||  In  this  case  it  was 
said,  that  where  an  estate  is  limited  to  A  for  life,  remainder  to  his  first,  &c,  sons  in 
tail,  though  it  be  a  plain  wrong  and  tort  in  him  to  do  any  act  which  will  destroy  those 
contingent  remainders  before  the  birth  of  a  son,  notwithstanding  his  legal  power  of 
doing  so  ;  yet  as  in  this  case  there  is  no  trustee,  there  can  bo  no  trust,  nor  consequently 
any  breach  of  trust,  and  therefore  this  court  can  have  no  conusance  of  such  a  case,  nor 
handle  for  relief,  the  matter  being  left  purely  to  the  common  law.  But  to  prevent  this 
inconvenience  has  the  remedy  of  appointing  trustees  been  invented,  on  purpose  to  dis- 
able the  tenant  for  life  from  doing  such  injury  to  his  issue,  which  is  not  a  very  old  in- 
vention. Per  Lord  Ch.  J.  King,  assisted  ut  supra.  2  P.  Wms.  612,  613.  ||As  to  the 
cases  in  which  trustees  will  be  ordered  to  make  conveyances,  in  order  to  defeat  the  con- 
tingent estates,  see  Moody  v.  Walters,  16  Ves.  283  ;  Biscoe  v.  Perkins,  1  Ves.  &  B.  485. || 

If  A,  seised  in  fee,  in  trust  for  B,  for  full  consideration  conveys  to  C, 
who  has  notice  of  the  trust,  and  afterwards  C,  to  strengthen  his  own  estate, 
levies  a  fine ;  B,  the  cestui  que  trust,  is  not  bound  to  enter  within  five 
years ;  for  C  having  purchased  with  notice,  notwithstanding  any  con- 
sideration paid  by  him,  is  but  a  trustee  for  B,  and  so  the  estate  not 
being  displaced,  the  fine  cannot  bar. 

1  Vera.  149,  Bovev  v.  Smith ;  [2  Atk.  630,  Story  v.  Ld.  Windsor ;  3  Atk.  563, 
Shields  v.  Atkina,  S.  P.] 

So,  if  an  executor,  in  trust  for  an  infant  residuary  legatee,  renews  a 
lease,  part  of  the  testator's  personal  estate,  in  his  own  name,  and  first 
mortgages  it,  and  then  assigns  the  equity  of  redemption  to  a  trustee,  to 
sell  for  payment  of  his  own  debts,  and  his  trustee  sells  to  one  who  has 
notice  of  the  infant's  title,  the  purchase  will  be  set  aside. 

1  Vera.  484,  Walley  v.  Walley. 

[If  a  trustee  conveys  to  one  who  has  no  notice  of  the  trust,  and  the 
grantee  levies  a  fine,  and  five  years  pass,  and  afterwards  the  trustee  pur- 
chases the  same  lands  again  for  a  bond  fide  consideration ;  still  he  shall 
be  a  trustee,  as  he  was  before. 

Bovey  v.  Smith,  1  Vera.  70.] 


216  USES  AND  TRUSTS. 

(E)  What  Acts  of  a  Trustee  shall  be  a  Breach  of  Trust,  &c. 

||  But  a  stranger  who  purchases  with  notice  from  a  person  who  purchased 

for  valuable  consideration  without  notice,  may,  it  is  conceived,  shelter 

himself  under  the  first  purchase. 

See  Lowther  v.  Carlton,  2  Atk.  242  ;  and  the  case  in  note  to  Mr.  Sanders's  edition, 
11  Ves.  478,  Macqueen  v.  Farquhar.|| 

[But  if  a  trustee,  when  in  possession,  alienates  for  a  valuable  consider- 
ation, and  without  notice,  the  sale  will  be  good,  and  the  purchaser  will 
not  be  a  trustee  in  his  stead.  The  cestui  que  trust  may  indeed  compel 
the  trustee  to  make  satisfaction  in  such  case ;  but  the  breach  of  trust  is 
considered  but  as  a  simple  contract  debt,  and  can  only  fall  upon  the 
personal  estate  of  the  trustee,  unless  the  trustee  has  acknowledged  the 
debt  to  the  trust-estate  under  hand  and  seal. 

Millard's  case,  2  Freem.  43  ;  Hardr.  469  ;  1  Ch.  R.  245  ;  Vernon  v.  Vaudrey,  Bar- 
nardist.  Ch.  R.  280 ;  2  Atk.  119,  S.  C. ;  Gifford  v.  Manley,  Ca.  temp.  Talbot,  109.] 

A  bare  trustee  cannot  alter  the  nature  of  the  trust  by  turning  land  into 

money,  or  money  into  land,  so  as  to  make  it  vest  in  different  persons,  by 

his  act  than  it  would  otherwise  have  done. 

Farlam  v.  Sanders  in  Chanc.  Mich.  28  G.  2,  MS.  Rep. ;  and  see  3  P.  Wms.  100, 
Witter  v.  Witter. 

j3  Where  trustees  are  empowered  by  deed  to  sell  real  estate,  and  with 
the  proceeds  to  pay  debts  and  make  investments  in  stocks,  they  are  not 
authorized  to  exchange  the  trust  property  for  other  real  estate. 

Ringgold  v.  Ringgold,  1  liar.  &  Gill,  ll.fif 

[So,  where  an  executor  in  trust  for  an  infant  on  a  lease  for  ninety-nine 

years,  determinable  on  three  lives,  upon  the  lord's  refusing  to  renew  but 

for  lives  absolutely,  complied  with  the  lord  and  changed  the  years  into 

/lives  ;  this,  upon  the  infant's  dying  under  twenty-one  and  intestate,  was 

adjudged  to  be  a  trust  for  his  administrator,  and  not  for  his  heir. 

Witter  v.  Witter,  3  P.  Wins.  99.     ||See  Milner  v.  Hare  wood,  18  Yes.  274.  || 

But,  where  a  feme  purchased  a  church  lease  to  her  and  her  heirs  for 
three  lives,  and  died,  leaving  an  infant  daughter,  two  of  the  lives  died,  and 
the  guardian  renewed  the  lease,  it  was  holden,  that  this  renewed  lease  was 
a  new  acquisition,  and  should  go  to  the  heirs  on  the  part  of  the  father. 

Mason  v.  Day,  Pr.  Ch.  329 ;  Pierson  v.  Shore,  1  Atk.  480,  S.  P. 

However,  in  general,  it  is  true,  that  a  guardian  or  trustee  shall  not  alter 
the  nature  of  an  infant's  property,  so  as  to  change  the  right  of  succession 
to  it  in  case  of  the  infant's  death,  unless  by  some  act  manifestly  for  the 
advantage  of  the  infant  at  the  time. 

Rook  v.  Warth,  1  Ves.  461 ;  Tullit  v.  Tullit,  Ambl.  370;  Inwood  v.  Twyne,  Ibid. 
417 ;  Vernon  v.  Vernon,  cited  in  Ex  parte  Bromtield,  3  Bro.  Ch.  R.  513.] 

{A  devisee  of  all  the  testator's  effects,  real  and  personal,  in  trust  for  the 
testator's  widow  and  children,  received  from  the  widow,  who  was  execu- 
trix, on  her  going  abroad  to  recover  part  of  the  property  bonds  for  a  debt 
due  from  him  and  his  partners  to  the  estate  ;  and  in  settling  the  affairs  of 
the  partnership  on  the  retirement  of  one  partner,  who  had  notice  of  the 
trust,  delivered  to  him  the  bonds  to  be  cancelled  without  the  privity  of  the 
cestuis  que  trust,  continuing  to  make  remittances  on  that  account  from 
the  funds  of  the  new  partnership.  Upon  their  bankruptcy,  the  partner 
who  retired  was  held  to  be  answerable  to  the  cestuis  que  trust. 

4  Ves.  J.  36,  Dickenson  v.  Lockyer.} 


USES   AND   TRUSTS.  217 

(F)  What  defeats  the  Trust,  or  destroys  contingent  Remainders. 

|3  Devise  to  trustees,  one  of  whom  was  the  mother  of  cestuis  que  trust, 
with  power  to  make  advancements;  she  alone  acted  and  made  advance- 
ments without  the  concurrence  of  her  co-trustee;  held,  that  the  proper 
discretion  not  having  been  exercised,  such  could  not  be  allowed,  and 
that  an  after-taken  husband  was  liable  for  her  breach  of  trust. 

Palmer  v.  Wakefield,  3  Beav.  227. 

Where,  by  the  terms  of  the  settlement,  it  appears  to  be  the  intention 
of  the  parties  that  there  should  at  all  times  be  two  trustees  of  the  pro- 
perty comprised  in  the  settlement,  the  appointment  of  a  single  trustee 
in  the  place  of  two  original  trustees,  and  the  transfer  by  them  of  the 
trust  property  to  such  single  trustee,  is  a  breach  of  trust,  and  the  original 
trustees  are  answerable  accordingly. 

Hulme  v.  Hulme,  2  Mylne  &  K.  G82. 

When  several  trustees  are  implicated  in  a  breach  of  trust,  the  bill  to 
recover  the  trust-fund  cannot  be  against  some  of  them  only,  but  all  those 
who  are  living,  and  the  representatives  of  those  who  are  dead,  must  be 
made  parties. 

Munch  v.  Cockerel!,  8  Sim.  219. 

Where  personal  estate  of  one  of  two  trustees  has  been  distributed 
among  legatees,  in  ignorance  of  a  claim  against  the  estate  in  respect  of 
breach  of  trust ;  held,  that  the  cestuis  que  trust  were  still  entitled  to  fol- 
low the  estate  in  the  hands  of  the  surviving  legatees  and  the  personal 
representatives  of  the  trustee  and  the  legatees  of  his  deceased  legatees, 
and  that  without  any  inquiry  whether  the  plaintiffs  knew  of,  or  acqui- 
esced in  the  breach  of  trust,  or  of  an  arrangement  made  between  the 
trustees  and  the  parties  interested  in  respect  thereof. 
*  March  v.  Russell,  3  Mylne  &  C.  31. 

Where  trustees  of  the  separate  property  of  a  feme  covert,  without 
power  of  anticipation,  joined  in  a  lease  for  which  a  fine  was  paid,  and 
received  by  a  third  person ;  held,  a  breach  of  trust,  though  the  feme 
covert  joined  in  the  lease. 

Booth  v.  Purser,  1  Irish  Eq.  R.  37. £f 

(F)  What  Acts  of  the  Trustee,  jointly  with  Cestui  que  trust,  or  by  Cestui  que  trust  only, 
shall  defeat  the  Trust,  or  destroy  contingent  Remainders. 

Though  at  law,  by  the  trustees  concurring  in  any  act  to  prevent  the 
rising  of  the  contingent  remainders,  it  was  formerly  held  that  it  was  for 
ever  destroyed  and  gone;  yet  Cowper,  C,  held  this  to  be  an  exploded 
opinion  now  in  Chancery,  as  to  persons  who  are  to  come  in  and  be  con- 
sidered as  purchasers  under  the  marriage  settlement  and  portion.  But 
as  for  voluntary  remainders,  (as  a  remainder  to  the  right  heirs  of  the 
body  of  the  husband,  and  after  to  his  right  heirs,  neither  of  which  can 
be  said  to  be  within  the  purchase  of  the  marriage  portion,  but  only  the 
first  and  other  sons,  &c,  of  the  marriage,)  this  court  will  not  assist  them 
to  support  the  remainder  so  destroyed. 

Gilb.  Eq.  R.  34,  Tipping  v.  Piggot.  |3A  conveyance  in  tail,  to  trustees  to  preserve 
contingent  remainders,  may  be  cancelled  by  a  decree,  so  as  to  bind  the  interests  of  all, 
though  the  cestui  que  trust  be  not  made  defendant.    Campbell  v.  Watson,  8  Ohio,  498.£f 

If  trustees  in  a  settlement,  to  support  contingent  remainders,  join  with 
the  tenant  for  life  in  any  conveyance,  to  destroy  the  contingent  remainders 
Vol.  X.— 28  T 


218  USES  AND  TRUSTS. 

(F)  What  defeats  the  Trust,  or  destroys  contingent  Kemainders. 

before  they  come  in  esse,  this  is  a  plain  breach  of  trust ;  and  whoever 
claims  under  such  a  conveyance,  having  notice  of  the  trust,  or  by  a 
voluntary  settlement,  shall  be  liable  to  make  good  the  estate. 

2  Salk.  680,  Pye  v.  George  ;  1  P.  Wms.  128,  S.  C. ;  [1  Bro.  P.  C.  359,  S.  C]  ||For 
cases  in  which  trustees  will  be  ordered  to  make  conveyances  in  order  to  defeat  contin- 
gent estates,  see  Moody  v.  Walters,  16  Ves.  283  ;  Biscoe  v.  Perkins,  1  Ves.  &  B.  485.  || 
But  if  a  trustee  join  with  a  cestui  que  trust  in  tail  in  any  conveyance  to  bar  the  entail, 
this  is  no  breach  of  trust ;  for  it  is  no  more  than  what  he  may  be  compelled  to,  though 
the  cestui  que  trust  himself  might  have  barred  such  entail  without  his  joining  ;  and  that 
not  only  by  fine  or  recovery,  but  likewise  by  feoffment,  bargain  or  sale,  devise  or  sur- 
render (if  the  entail  be  of  a  copyhold,  and  there  be  no  particular  custom  which  requires 
a  common  recovery  ;)  for  such  entail  is  not  within  the  statute  de  donis,  but  remains  as 
at  common  law  ;  and  being  a  trust  is  governable  only  by  the  rules  of  equity,  and  not  by 
the  niceties  of  the  law :  and  this  seems  to  be  supported  not  only  by  the  latter,  but  by 
the  far  greater  number  of  authorities  and  in  cases  wherein  the  very  point  itself  was 
debated,  though  there  are  obiter  sayings  and  opinions,  which  have  made  some  distinc- 
tions, and  others  which  have  flatly  contradicted  it.  Vide  1  Chan.  Ca.  49,  213  ;  2  Chan. 
Ca.  64,  78 ;  1  Vern.  13,  440 ;  2  Vera.  133,  583,  702. 

But,  if  a  settlement  on  a  marriage-treaty  be  made  on  the  husband  for 
ninety-nine  years,  if  he  live  so  long,  remainder  to  trustees  to  preserve 
contingent  remainders,  remainder  to  the  heirs  of  the  body  of  the  hus- 
band by  the  wife,  remainder  to  the  heirs  of  the  husband ;  and  there  be 
issue  two  sons  and  a  dauhgter ;  and  the  wife  being  dead,  the  husband  and 
trustees  join  with  the  eldest  son  in  a  fine  or  feoffment  to  J  S  ;  this  is  a 
good  bar  of  the  trust  estate,  and  the  trustees  joining  is  no  breach  of 
trust,  for  they  were  trustees  purely  for  the  tenant  in  tail,  and  to  preserve 
his  estate,  and  not  to  stand  in  opposition  to  him  for  the  sake  of  those 
who  were  to  come  after  him. 

2  Vern.  754,  Elie  v.  Osborne ;  and  see  1  P.  Wms.  387,  S.  C.  by  the  name  of  Else  v., 
Osborne. 

Trustees  to  preserve  contingent  remainders,  if  tenant  for  life  or  years 
commit  waste,  may  restrain  them  by  injunction.  If  there  is  only  an  estate 
for  years,  remainder  to  first  and  other  sons,  remainder  in  tail,  and  no  trus- 
tees to  preserve,  &c,  the  remainder-man  in  tail  before  issue  born,  would 
have  an  immediate  freehold ;  and  if  it  had  been  tenant  for  life  and  no  trus- 
tees, he  might  before  issue  born  have  surrendered  to  the  remainder-man,  or 
barred  the  whole  estate.  The  rise  of  these  trustees  was  from  Chudley  and 
Arther's  case  in  Co.  Rep.,  and  remainders  in  trustees  and  their  heirs 
during  the  life  of  another  person  have  been  held  good,  as  that  person 
may  commit  a  forfeiture.  Where  there  is  tenant  for  years,  with  remainder 
to  trustees  during  his  life  to  preserve  contingent  remainders,  the  freehold 
is  in  the  trustees,  and  the  possession  of  tenant  for  years  is  in  law  the 
possession  of  the  owner  of  the  freehold.  It  is  agreeable  to  justice  in  sup- 
port of  right  to  construe  trusts  in  the  most  liberal  manner.  Trustees  are 
the  creatures  of  this  court,  and  under  the  correction  of  it  intended  to  pre- 
serve the  inheritance  entire.  These  trusts  are  generally  declared  with 
power  to  make  entry  and  bring  actions,  &c,  as  the  law  requires,  which 
includes  equity  too  :  and  trustees  may  bring  a  bill  in  equity  to  stay  waste, 
before  the  contingent  remainder  comes  in  esse.  Trustees  are  liable  in 
equity  to  make  satisfaction  for  breach  of  trust,  and  a  voluntary  alienee, 
with  notice,  will  be  decreed  to  restore  the  estate. 

Garth  v.  Cotton,  MS.  Rep.  ||3  Atk.  751;  1  Dick.  183.  See  1  Ves.  524,  S.  C. 
Stansfield  v.  Habergham,  10  Ves.  278. || 


USES  AND  TRUSTS.  219 

(G)  In  what  Cases  Equity  will  decree  Trustees  to  join  in  a  Recovery,  &c,  with  Cestui 

que  trust. 

In  some  cases,  trustees  have  been  decreed  to  join  for  the  benefit  of  cre- 
ditors : — Thus,  where  J  S,  after  marriage,  made  a  voluntary  settlement 
of  his  lands  to  himself  for  life,  remainder  to  trustees  to  support,  frc,  re- 
mainder to  his  first,  £c,  son  in  tail  successively,  remainder  to  himself  in 
fee  ;  and  contracting  debts,  he  afterwards  makes  a  conveyance  of  his  estate 
to  other  trustees  for  payment  of  these  debts ;  the  creditors  bring  a  bill, 
and  (inter  alia)  insist  that  the  trustees  in  the  first  settlement  should  join 
in  the  sale  to  destroy  the  contingent  remainders ;  his  honour,  upon  show- 
ing a  precedent  of  a  like  decree,  decreed  that  the  trustees  should  join  to 
destroy  the  contingent  remainders,  and  be  indemnified,  it  being  at  the 
suit  of  creditors,  and  for  the  raising  of  money  for  the  payment  of  debts. 

1  P.  "Wins.  358,  Basset  v.  Clapham.  Note.  By  the  7  Ann.  c.  19,  infants  being 
trustees  or  mortgagees,  may  be  compelled  to  make  convej-ances  by  order  of  the  Court 
of  Chancery.  { See  5  Ves.  J.  240,  Ex  parte  Anderson  ;  10  Yes.  J.  554,  Ex  parte  Cant.  \ 
It  is  a  general  rule  in  equity,  that  where  a  real  or  personal  estate  is  charged  with 
payment  of  debts  generally,  and  vested  in  trustees  to  sell,  the  purchaser  from  such 
trustees  is  not  answerable  for  any  misapplication  of  the  money,  and  needs  not  see 
that  the  debts  are  paid.  But  if  it  is  made  chargeable  with  particular  debts,  it  is  other- 
wise ;  or  if  there  is  any  collusion  between  the  executor  or  trustee  and  purchaser,  the 
purchase  would  be  infected  with  the  fraud  or  collusion.  Per  Lord  Chancellor  Hard- 
wicke,  Mich.  27  G.  2,  Anon.  MS.  Rep.  ;  and  see  1  Yern.  260,  Dutch  v.  Kent;  and 
Ibid.  303,  Spalding  v.  Shalmer,  S.  P.  { See  also  4  Yes.  J.  100,  Crewe  v.  Dicken  ;  G  \  es. 
J.  654,  n.  ;  8  Yes.  J.  417,  Lord  Braybroke  v.  Inskip ;  12  Yes.  J.  89,  Curtis  v.  Price. } 

||  By  the  39  &  40  G.  3,  c.  88,  §  12,  and  47  G.  3,  sess.  2,  c.  24,  the 
king  is  authorized  to  direct  the  execution  of  any  trusts  affecting  lands 
which  have  become  vested  in  him  in  consequence  of  escheat,  forfeiture,- 
or  otherwise. (a) 
•     (a)  See  Ex  parte  Tutin,  3  Yes.  &  B.  149. 

By  the  36  G.  3,  c.  90,  in  cases  where  the  trustees  in  whose  name  stock 
is  standing  shall  be  absent  and  out  of  the  jurisdiction  of  the  Court  of 
Chancery  or  Exchequer,  or  be  bankrupt,  or  lunatic,  the  court  may,  in  any 
cause  depending,  order  the  stock  to  be  transferred  either  to  or  into  the 
name  of  the  Accountant-General  of  the  Court  of  Chancery,  or  Deputy 
Remembrancer  of  the  Exchequer,  in  trust  in  the  cause,  or  to  and  into  the 
name  of  the  person  equitably  or  beneficially  entitled  to  such  stock,  as 
the  case  may  require,  and  as  to  the  said  courts  shall  seem  fit,  and  also 
to  order  and  direct  the  mode  in  which  the  dividends  shall  be  paid. 

By  1  Will.  4,  c.  60,  "  for  amending  the  laws  respecting  conveyances 
and  transfers  of  estates  and  funds  vested  in  trustees  and  mortgagees,  and 
for  enabling  courts  of  equity  to  give  effect  to  their  decrees  and  orders  in 
certain  cases,"  sect.  3,  it  is  enacted,  that  where  any  person  seised  or  pos- 
sessed of  any  land  upon  any  trusts  or  by  way  of  mortgage  shall  be  lunatic, 
it  shall  be  lawful  for  the  committee  of  the  estate  of  such  person,  by  the 
direction  of  the  Lord  Chancellor  of  Great  Britain,  to  convey  such  land  in 
the  place  of  such  trustee  or  mortgagee  to  such  person  and  in  such  manner 
as  the  Lord  Chancellor  shall  think  proper,  and  such  conveyance  shall  be 
as  effectual  as  if  the  trustee  or  mortgagee  had  been  of  sane  mind,  &c. 

By  §  4,  where  stock  shall  be  standing  in  the  name  of  a  lunatic,  as  a 
trustee  or  executor  either  alone  or  jointly  with  any  person,  or  shall  con- 
tinue to  be  standing  in  the  name  of  a  deceased  person  whose  executor  shall 
be  lunatic,  or  shall  be  otherwise  vested  in  any  lunatic  for  the  benefit  of 
some  other  person,  the  Lord  Chancellor  may  direct  the  committee  of  the 


220  USES  AND  TRUSTS. 

(G)  Where  Trustees  to  join  in  Recovery,  &c.     (Lunatics,  dx.) 

estate  of  such  lunatic  to  transfer  such  stock  into  the  name  of  such  person 
and  in  such  manner  as  the  Lord  Chancellor  shall  think  proper,  and  also 
to  order  such  person  to  receive  and  pay  over  the  dividends  of  such  stock 
in  such  manner  as  the  Lord  Chancellor  shall  direct. 

By  §  5,  where  any  such  person  being  lunatic  shall  not  have  been  found 
such  by  inquisition,  it  shall  be  lawful  for  the  Lord  Chancellor  to  direct 
any  person,  whom  he  may  think  proper  to  appoint  in  place  of  such  lu- 
natic, to  convey  such  land,  or  transfer  such  stock  and  receive  and  pay 
over  the  dividends  thereof;  and  every  such  conveyance,  transfer,  receipt, 
or  payment,  shall  be  as  effectual  as  if  the  said  person  being  lunatic  had 
been  sane  and  had  made  or  executed  the  same :  but  where  any  such  sum 
of  money  shall  be  payable  to  such  lunatic,  no  such  last-mentioned  order 
shall  be  made,  if  such  sum  shall  exceed  7007. 

By  §  6,  where  any  person  seised  or  possessed  of  any  land  upon  any 
trust,  or  by  way  of  mortgage,  shall  be  under  the  age  of  twenty-one  years, 
it  shall  be  lawful  for  such  infant,  by  direction  of  the  Court  of  Chancery, 
to  convey  the  same  to  such  person  and  in  such  manner  as  the  court  shall 
think  proper ;  and  every  such  conveyance  shall  be  as  effectual  as  if  the 
infant  trustee  or  mortgagee  had  been  of  the  age  of  twenty-one  years. 

§  7  relates  to  infant  trustees  of  land  in  the  duchy  of  Lancaster,  and 
the  counties  palatine  of  Lancaster,  Chester,  and  Durham. 

By  §  8,  where  any  person  seised  of  land  upon  trust  shall  be  out  of  the 
jurisdiction  of  the  Court  of  Chancery,  or  it  shall  be  uncertain,  where  there 
were  several  trustees,  which  of  them  was  the  survivor,  or  it  shall  be  un- 
certain whether  the  trustee  last  known  to  have  been  seised  be  living  or 
dead,  or  if  known  to  be  dead,  it  shall  not  be  known  who  is  his  heir ;  or  if 
any  trustee  seised  as  aforesaid,  or  the  heir  of  any  such  trustee,  shall 
neglect  or  refuse  to  convey  such  land  for  the  space  of  twenty-eight  days 
next  after  a  proper  deed  for  making  such  conveyance  shall  have  been  ten- 
dered for  his  execution,  by,  or  by  an  agent  duly  authorized  by,  any  person 
entitled  to  require  the  same,  then  the  Court  of  Chancery  may  direct  any 
person  whom  it  shall  appoint  for  that  purpose,  in  the  place  of  the  trustee 
or  heir,  to  convey  such  land  to  such  person  and  in  such  manner  as  the 
court  shall  think  fit ;  and  every  such  conveyance  shall  be  as  effectual  as  if 
the  trustee  seised  as  aforesaid,  or  his  heir,  had  made  or  executed  the  same. 

By  §  9,  a  similar  provision  is  made  in  the  case  of  trustees  of  leasehold 
estate  being  out  of  the  jurisdiction,  &c,  &c,  (as  in  the  former  section.) 

By  §  10,  where  any  person  in  whose  name  as  a  trustee  or  executor,  either 
alone,  or  together  with  the  name  of  any  other  person,  or  in  the  name  of 
whose  testator  (whether  as  a  trustee  or  beneficially)  any  stock  shall  be 
standing,  or  any  other  person  who  shall  otherwise  have  power  to  transfer 
or  join  with  any  other  person  in  transferring  any  stock  to  which  some  other 
person  shall  be  beneficially  entitled,  shall  be  out  of  the  jurisdiction  of,  or 
not  amenable  to,  the  process  of  the  Court  of  Chancery,  or  it  shall  be  uncer- 
tain whether  such  person  be  living  or  dead  ;  or  if  any  such  trustee  or  exe- 
cutor or  other  person  shall  neglect  or  refuse(a)  to  transfer  such  stock,  or 
receive  and  pay  over  the  dividends  thereof  to  the  person  entitled  thereto, 
or  to  any  part  thereof  respectively,  or  as  he  shall  direct  for  the  space  of 
thirty-one  days  next  after  a  request  in  writing  for  that  purpose  shall  have 
been  made  to  any  such  trustee  or  executor  or  other  person  by  the  person 
entitled  as  aforesaid,  then  the  Court  of  Chancery  may  direct  such  person 
as  the  court  shall  appoint,  in  the  place  of  such  trustee  or  executor  or  other 


USES  AND  TRUSTS.  2-21 

(G)  Where  Trustees  to  join  in  Recovery,  &c.     (Lunatics,  dec.) 

person,  to  transfer  such  stock  to  or  into  the  name  of  such  person,  and  in 
such  manner  as  such  court  shall  direct,  and  also  to  order  any  person  ap- 
pointed as  aforesaid  to  receive  and  pay  over,  or  join  in  receiving  and 
paying  over,  the  dividends  of  such  stock  in  such  manner  as  the  said 
court  shall  direct. 

(a)  See  1  Turner  &  Russ.  330. 

By  §  13,  any  committee,  infant,  or  other  person  directed  by  virtue  of 
this  act  to  make  or  join  in  making  any  conveyance  or  transfer,  or  receipt  or 
payment,  shall  and  may  be  compelled,  by  the  order  to  be  obtained  as  herein- 
before mentioned,  to  execute  the  same  in  like  manner  as  trustees  of  full  age 
and  sane  mind  are  compelled  to  convey,  &c,  the  trust  estates  vested  in  them. 

By  §  15,  every  person  being  in  other  respects  within  the  meaning  of 
this  act,  shall  be  deemed  a  trustee  within  the  meaning  of  this  act,  notwith- 
standing he  may  have  some  beneficial  interest  or  estate  (a)  in  the  same 
subject,  or  may  have  some  duty  as  trustee  to  perform. 

(a)  Under  the  act  4  G.  2,  c.  10,  the  lunatic  trustee  was  not  within  the  act,  if  he  had 
a  beneficial  interest.     Ex  parte  Tutin,  3  Yes.  &  B.  149. 

But  in  every  such  case  it  shall  be  in  the  discretion  of  the  Court  of 
Chancery,  if  requisite,  to  direct  a  bill  to  be  filed  to  establish  the  right  of 
the  party  seeking  the  conveyance  or  transfer,  and  not  to  make  the  order 
for  such  conveyance  or  transfer,  unless  by  the  decree  to  be  made  in  such 
cause,  or  until  after  such  decree  shall  have  been  made. 

By  §  18,  the  provisions  of  the  act  shall  extend  to  every  case  of  a  con- 
structive trust,  or  trust  arising  or  resulting  by  implication  of  law,(5)but  in 
every  such  case  where  the  alleged  trustee  has  or  claims  a  beneficial  interest 
adversely  to  the  party  seeking  a  conveyance  or  transfer,  no  order  shall  be 
made  for  the  execution  of  a  conveyance  or  transfer  by  such  trustee  until 
after  it  has  been  declared  by  the  Court  of  Chancery,  in  a  suit  regularly 
instituted  in  such  court,  that  such  person  is  a  trustee  for  the  person  so 
seeking  a  conveyance  or  transfer  ;  but  the  act  shall  not  extend  to  cases 
upon  petition,  or  cases  arising  out  of  the  doctrine  of  election  in  equity, 
or  to  a  vendor,  except  in  any  case  before  expressly  provided  for. 

(6)  The  act  7  Ann.  c.  19,  applied  only  to  trusts  expressly  declared,  and  not  to  trusts 
implied  by  law.     Goodwin  v.  Lister,  3  P.  Wms.  387  ;  and  see  4  Russell,  513. 

By  §  19,  where  any  feme  covert  would  be  a  trustee,  mortgagee,  heir, 
or  executor,  within  the  provisions  of  the  act,  if  she  were  an  infant  or 
lunatic,  and  out  of  the  jurisdiction,  &c.  &c,  as  before  mentioned,  and 
the  concurrence  of  her  husband  shall  be  necessary  in  any  conveyance, 
transfer,  receipt  or  payment  which  ought  to  be  be  made  or  executed  by 
her  as  such  trustee,  mortgagee,  heir,  or  executor,  then  and  in  any  such 
case  such  husband,  whether  under  any  disability  or  not,  shall  be  deemed 
a  trustee  within  the  meaning  of  the  act. 

By  §  21,  the  act  is  extended  to  petitions  in  cases  of  charities,  or  benefit 
or  friendly  societies. || 

So  likewise  a  court  of  equity  will  decree  trustees  to  join  for  the 
apparent  benefit  of  the  family. 

In  a  marriage  settlement  the  husband  was  made  tenant  for  ninety-nine 
years,  if  he  should  so  long  live,  remainder  to  trustees  during  his  life,  re- 
mainder to  the  first,  &c,  son  of  that  marriage  in  tail-male  successively, 
remainder  to  the  first,  &c,  son  of  any  other  marriage,  remainder  over.  A 
son  is  born  and  of  age,  and  the  wife  is  dead.  The  trust  for  preserving 
contingent  remainders  descends  to  an  infant.     If  for  the  benefit  of  the 

t2 


222.  USES  AND  TRUSTS. 

(G)  Where  Trustees  to  join  in  Recovery,  &c. 

family,  equity  will  decree  the  infant  trustee  to  join  in  a  recovery,  in 
order  to  make  a  new  marriage  settlement. 

1  P.  Wms.  536,  Winnington  v.  Foley. 

Likewise,  where  A  having  mortgaged  his  lands,  and  also  confessed  a 
judgment,  and  afterwards  on  a  marriage  treaty,  settled  the  lands  thus 
encumbered  to  the  use  of  himself  for  life,  remainder  to  the  trustees  to  sup- 
port contingent  remainders,  remainder  to  his  wife  for  life,  remainder  to  his 
first  and  other  sons  in  tail,  remainder  to  his  own  right  heirs,  and  having 
no  issue,  articled  to  sell  the  lands  to  J  S,  who  brought  a  bill  for  a  specific 
performance  of  the  agreement,  and  suggested  that  the  trustees  refused  to 
join,  and  that  the  mortgagee  threatened  to  enter  ;  it  was  decreed,  that  the 
trustees  should  join  and  be  indemnified,  the  estate  being  of  an  equity  of 
redemption  only,  and  there  being  no  issue,  (though  the  husband  and  wife 
were  married  six  years,)  and  the  wife,  on  her  examination  in  court,  con- 
senting freely  thereunto.  But  note ;  those  settlements  can  rarely  be 
broken  through  but  by  an  act  of  parliament. 

2  Vern.  303,  Piatt  v.  Sprigg. 

Where,  on  marriage,  lands  were  limited  to  the  use  of  A  for  ninety-nine 
years,  if  he  should  live  so  long,  remainder  to  B,  and  other  trustees,  (of 
which  B  was  the  survivor,)  and  their  heirs  during  A's  life,  to  preserve, 
&c,  remainder  to  A's  wife  for  life  ;  remainder  to  the  first,  &c,  sons  of  the 
marriage  in  tail-male  successively,  remainder  over ;  the  wife  died,  leaving 
issue  of  the  marriage  only  two  sons,  C  and  D.  A  having  mortgaged  the 
premises,  he  and  his  son  C,  (C  being  then  of  age,)  covenanted  to  suffer  a 
recovery,  and  to  procure  B  the  surviving  trustee  to  join  therein,  but  B 
refusing  to  join  in  making  a  tenant  to  the  praecipe,  the  mortgagee  prayed 
a  specific  performance  of  the  covenant,  and  that  B  might  join  in  suffering 
the  recovery  ;  B  by  answer  submitted  to  the  court,  but  D  the  younger  son 
refused  to  consent :  Lord  Chan.  King  said,  that  then  he  would  not  decree 
the  trustee  to  join,  for  that  he  would  not  take  away  any  man's  right;  so 
dismissed  the  bill  as  to  B  and  D  with  costs,  but  decreed  A  and  C  specifi- 
cally to  perform  the  covenant. 

2  P.  Wms.  379,  Townsend  v.  Lawton. 

Likewise,  where  J  S  by  a  marriage  settlement  was  tenant  for  ninety-nine 
years,  if  lie  should  so  long  live,  with  remainder  to  trustees  and  their  heirs 
during  his  life,  to  support  contingent  remainders,  with  remainder  to  his 
first  and  every  other  son  successively  in  tail-male,  remainder  to  trustees  for 
500  years,  in  trust  to  raise  portions  for  daughters,  if  there  were  no  issue 
male,  or  that  such  issue  male  died  without  issue  before  twenty-one ;  J  S 
had  issue  a  son,  and  being  of  age  and  to  marry,  he  and  his  father  bring  in 
a  bill  to  have  the  trustees  join  in  making  an  estate,  in  order  to  suffer  a 
common  recovery,  that  he  might  be  enabled  to  make  a  settlement  on  his 
marriage ;  and  it  was  urged,  that  the  trustees  were  only  trustees  for  the 
son,  and  ought  to  execute  estates  as  he  should  direct,  he  having  the  in- 
heritance in  him,  and  that  the  end  of  the  trusts  was  to  hinder  the  father 
from  defeating  the  son  of  the  estate.  On  the  other  side,  it  was  urged,  that 
these  trustees  were  not  only  trustees  for  the  eldest  son,  but  were  designed 
as  a  guard  to  the  whole  settlement ;  that  the  mother  being  living,  there 
might  be  other  children,  and  for  the  trustees  to  join  would  be  a  breach  of 
trust,  and  if  there  should  be  daughters  they  would  by  this  means  be  entirely 
stripped  of  their  portions ;  and  though  the  term  for  raising  them  was  un- 


USES  AND  TRUSTS.  223 

(G)  Where  Trustees  to  join  in  Recovery,  &c. 

skilfully  drawn,  in  putting  it  behind  the  estate-tail  to  the  sons,  yet  this 
court  had  set  it  sometimes  before  those  estates.  There  being  a  daughter 
in  this  case,  my  Lord  Harcourt  directed,  upon  giving  security  for  the 
daughter  s  portion,  that  the  trustees  should  join  in  a  recovery. 

1  Abr.  Eq.  Ca.  386,  Frewin  v.  Charleton. 

[On  a  bill  to  compel  trustees  to  join  in  a  sale,  which  would  destroy  the 
contingent  remainders,  and  likewise  the  uses  in  a  settlement  made  before 
marriage,  it  appeared,  that  the  limitations  were  to  the  husband  for  ninety- 
nine  years,  if  he  so  long  lived,  to  the  wife  for  her  life,  remainder  to  trustees 
to  support  contingent  remainders,  remainder  to  the  heirs  begotten  on  the 
body  of  the  wife,  remainder  to  the  heirs  of  the  husband ;  and  that  the  first 
declaration  under  it  was,  that  it  was  the  intention  of  the  settlement  to  make 
a  provision  for  the  children  of  the  marriage,  with  a  covenant  on  the  part 
of  the  husband,  that  he  would  not  bar  the  estate  tail  to  the  wife,  but  would 
preserve  the  uses  before  limited  and  appointed.  Lord  Hardwicke  dis- 
missed the  bill,  and  said, — There  are  many  cases  in  which  the  court  will 
compel  the  trustees  to  join  in  such  conveyance  as  will  destroy  contingent 
remainders;  but  then  it  must  be  in  some  measure  to  answer  the  uses  in- 
tended by  the  settlement,  and  has  been  usually  done  in  the  case  of  old 
settlements,  as  in  Winnington  v.  Foley  (supra) ;  but,  I  believe,  there  is  no 
instance  where  they  have  compelled  such  trustees  to  join  with  the  father, 
termor  for  years,  and  the  son  to  sell  the  estate.  The  old  notion  was,  that 
these  trustees  were  only  honorary ;  but  this  has  been  varied  since,  for  in 
the  case  of  Pigot  v.  Pigot,  Lord  Harcourt  was  of  a  different  opinion,  and 
in  Mansell  v.  Mansell,  (supra,)  Lord  Chancellor  King,  assisted  by  Lord 
Chief  Justice  Raymond,  and  Lord  Chief  Baron  Reynolds,  was  of  opinion, 
that  trustees  for  preserving  contingent  remainders  joining  to  destroy  them, 
were  guilty  of  a  breach  of  trust,  and  that  there  was  no  diversity,  ivhether  the 
settlement  be  voluntary,  or  for  a  valuable  consideration,  or  by  will  only. 
But  the  reason  of  those  cases  turned  upon  what  the  court  do  after  trustees 
had  actually  destroyed  the  remainders :  here  the  case  is  different,  for  the 
application  to  the  court  is  to  compel  the  trustees  to  do  an  act  which  would 
destroy  the  remainders.  There  is  another  difficulty,  which  is,  the  hus- 
band's actually  covenanting  in  the  settlement,  that  he  will  not  bar  the 
estate-tail  to  the  wife,  but  preserve  the  uses  before  limited ;  and  even 
though  the  husband  were  dead,  the  wife  could  not  do  any  act  by  which 
she  could  bar  the  estate-tail,  notwithstanding  the  trustees  should  consent 
to  join  with  her;  for  she  is  absolutely  restrained  from  barring  it  by  11  H. 
7,  c.  20.  If  it  had  been  an  application  only  to  destroy  the  contingent 
remainders,  I  should  have  taken  more  time  to  consider :  but  here,  it 
would  overturn  all  the  uses  of  a  marriage  settlement,  which  would  be 
assuming  too  much  power,  and  would  be  making  a  decree  to  compel  a 
breach  of  the  husband's  own  covenant. 

Syrnance  v.  Tattam,  1  Atk.  613. 

J  H  devised  his  lands,  after  the  death  of  his  wife  and  a  trust  term  of  one 
thousand  years,  to  his  son  B  Hfor  ninety-nine  years,  if  he  should  so  long 
live,  without  impeachment  of  waste,  remainder  to  two  trustees  and  their 
heirs  during  the  life  of  his  son  B,  to  preserve  contingent  remainders,  re- 
mainder to  the  first  and  other  sons  of  B  in  tail-male,  remainder  to  II  H  his 
second  son  for  ninety-nine  years,  if  he  should  so  long  live,  remainder  to 
the  same  trustees  and  their  heirs  during  the  life  of  II  II  to  preserve  con- 


224  USES  AND  TRUSTS. 

(G)  Where  Trustees  to  join  in  Recovery,  &c. 

tingent  remainders,  remainder  to  his  first  and  every  other  son,  remainder 
to  his  other  sons  in  like  manner,  remainder  to  J  H's  daughters,  remainder 
to  the  testator's  heirs.  There  was  a  power  for  the  sons,  when  in  posses- 
sion, to  make  jointures  and  leases,  except  as  to  particular  lands,  and  another 
power  for  B  and  the  other  sons  within  two  years  after  being  in  possession, 
and  having  a  son  of  the  age  of  eighteen,  to  revoke  the  former  uses,  and  to 
limit  new  uses,  so  that  the  premises  be  limited  to  the  heirs  male  of  the  sons 
in  the  same  manner  as  these  limitations,  and  to  settle  such  like  power  of 
revocation.  The  testator  died ;  B  H  his  eldest  son  died  without  issue.  H 
H  the  second  son  married  and  had  a  son  C  II,  now  above  twenty-one.  H 
II  and  his  son  became  indebted  by  bonds  to  creditors,  and  made  assign- 
ments of  the  settled  estates  in  trust  for  creditors,  and  agreed  to  suffer  a 
common  recovery,  to  make  the  assignment  and  provision  for  the  creditors 
effectual.  A  bill  was  brought  by  the  creditors  against  H  H  and  his  son  C, 
and  against  T  H,  (the  fifth  son  of  J  II,)  (all  the  sons  who  had  interme- 
diate remainders  as  before,  being  dead  without  issue,)  and  against  A  B  the 
heir  of  the  surviving  trustee,  to  preserve  contingent  remainders,  in  order 
to  compel  her  to  join  in  a  common  recovery,  and  that  the  plaintiffs  might 
have  an  effectual  security  and  satisfaction  for  their  debts.  Lord  Hard- 
wicke, — It  is  agreed,  there  is  no  precedent  where  the  court  have  decreed 
in  such  cases  the  trustee  to  join ;  and  I  am  of  opinion,  this  is  not  such 
a  case,  where  the  court  ought  to  decree  it.  Trustees  of  this  kind  are  called 
honorary  trustees,  and  intrusted  by  parties  to  preserve  the  contingent  re- 
mainders :  but,  I  will  not  say,  if  the  trustee  who  is  appointed  should  join, 
it  would  be  such  a  breach  of  trust  that  this  court  would  decree  a  satisfac- 
tion. The  reason  of  making  the  father  tenant  for  ninety-nine  years  is,  in 
order  to  preserve  the  estate.  It  may  likewise  be  the  design  of  such  settle- 
ments to  prevent  the  father's  influence  over  the  son  when  of  age,  if  the 
father  Avere  seised  of  the  freehold,  to  get  the  son  to  destroy  the  settlement. 
Here  the  intention  is  to  pay  the  debts  of  the  father.  The  objection  is,  that 
the  trustee  is  trustee  for  the  first  tenant  in  tail,  and,that  when  the  tenant  in 
tail  is  seised  of  the  freehold,  then  he  has  a  power  to  bar,  and  not  before. 
As  to  the  cases,  there  are  but  few:  Mr.  Wilmington's  was  in  order  to  let 
in  the  jointure,  and  a  provision  for  younger  children,  Avhich  was  still  carry- 
ing it  on  in  the  family.  The  argument  made  use  of  by  the  plaintiff's 
counsel,  was,  that  here  it  is  prayed  to  execute  the  trust  of  articles  ;  and  to 
be  sure,  it  is  true ;  but  this  court  is  not  to  decree  every  trust  created  by 
the  parties ;  and  though,  as  has  been  said  before,  the  court  might  not  con- 
demn the  trustee  if  he  consented,  yet  it  does  not  follow  that  the  court  will 
compel  the  trustee,  and  I  think  this  the  very  case  which  was  intended  to 
be  prevented  by  the  trust ;  wherefore  the  bill  must  be  dismissed. 
Woodhouse  v.  Hoakjns,  3  Atk.  22. 

F  B  devised  freehold  and  copyhold  estates  to  T  C  B  for  ninety-nine 
years,  if  he  should  so  long  live,  remainder  to  the  defendant  L,  during  the 
life  of  T  C  B,  in  trust  to  preserve  contingent  remainders,  remainder  to  the 
first  and  other  sons  of  T  C  B  in  tail-male,  remainder  to  J  W  in  fee.  T  C 
B  had  issue  only  one  son,  who  had  attained  twenty-one  years  of  age,  and 
the  father  and  son  now  filed  a  bill  against' L,  the  trustee,  and  J  W  the  re- 
mainder-man, stating,  that  they  were  desirous  of  suffering  a  recovery  and 
limiting  the  estate  so  as  to  preserve  the  contingent  remainders  to  the  second 
and  other  sons  of  T  C  B,  and  praying,  that  L  the  trustee  might  be  decreed 
to  join  in  making  a  tenant  to  the  praecipe  for  that  purpose,  submitting  to 


USES  AND    TRUSTS.  225 

(H)  What  Estate  Trustee  shall  eonvey,  and  to  whom. 

declare  the  uses  of  the  recovery  to  the  second  and  other  sons  of  T  C  B, 
by  way  of  contingent  remainders  as  limited  by  the  will,  and  to  limit  an 
estate  to  a  trustee  for  the  purpose  of  supporting  and  preserving  those 
contingent  remainders.  The  Master  of  the  Rolls,  Sir  Thomas  Sewell,  ob- 
served, that,  with  respect  to  remainders  to  remote  relations  in  settlements, 
where  the  persons  to  whom  they  were  limited  were  not  the  immediate  ob- 
jects of  the  parties,  or,  where  they  stand  in  opposition  to  the  first  tenant 
in  tail,  desiring  a  reasonable  benefit,  consistent  with  the  intentions  of  the 
creator  of  the  limitations,  their  pretensions  have  not  been  much  considered ; 
but  in  the  principal  case,  all  took  as  volunteers,  and  were  all  equally  to 
be  attended  to.  His  honour  then  considered  the  several  cases  on  this 
subject,  and  said,  that,  from  a  view  of  them  all,  it  seemed,  that  when  the 
eldest  son,  tenant  in  tail,  is  of  age,  and  about  to  marry,  and  thereby  con- 
tinue, instead  of  destroying  the  purposes  of  the  settlement,  and  in  some 
cases  where  there  has  been  particular  distress  under  particular  circum- 
stances, which  ought  to  have  induced  the  trustee  to  join,  the  court  has 
interfered ;  otherwise  not :  that  in  the  principal  case  he  was  called  upon 
to  disturb  the  testator's  disposition  merely  for  the  sake  of  disturbing  it, 
for  which  he  saw  no  reason,  and  dismissed  the  bill  with  costs. 

Barnard  v.  Large,  2  Cox's  P.  Wms.  684,  note ;  1  Bro.  Ch.  R.  534,  S.  C. ;  AmU. 
774,  S.  C] 

Cestui  que  trust  in  tail  under  a  devise  of  lands  charged  with  annuities, 
brings  a  bill  against  the  trustees,  to  the  intent  they  should  join  in  a  re- 
covery. This  is  not  proper,  but  it  is  proper  to  pray,  that  the  trustees 
may  convey  the  premises  to  cestui  que  trust  in  tail,  who  may  then  suffer 
a  recovery ;  though  if  the  trustees  are  also  trustees  for  an  annuity  sub- 
sisting, they  are  not  compellable  to  part  with  the  legal  estate  out  of  them 
to  the  cestui  que  trust  in  tail. 

2  P.  Wms.  R.  134,  Carteret  v.  Carteret.     ||  See  Young  v.  Leigh,  Gary,  95. || 

Note :  A  devise  to  trustees,  and  their  heirs  in  trust  to  sell,  is  deemed 

equitable  assets,  in  order  to  make  an  equal  distribution  among  all  the 

creditors. 

Howard  v.  Hall,  Hil.  1744,  MS.  Rep.  [The  rule  now  seems  to  he,  that  wherever 
the  character  of  trustee  can  he  fastened  on  the  devisee,  the  assets  shall  he  equitable. 
Lewin  v.  Oakley,  2  Atk.  50 ;  Silk  v.  Prime,  1  Bro.  Ch.  R.  138  ;  Batson  v.  Lindcgreen, 
2  Bro.  Ch.  R.  94.] 

(U)  When  a  Trust  is  to  be  executed,  what  Estate  or  Interest  is  to  be  conveyed,  and 

to  whom. 

It  is  now  constantly  held  in  Chancery,  that  if  lands  are  vested  in  trus- 
tees to  the  use  of  one  and  the  heirs  of  his  body,  with  remainder  over,  that 
the  trustees  are  not  to  convey  a  fee,  but  an  estate-tail,  though  he  will 
have  power  to  bar  the  entail,  when  the  conveyance  is  made  to  him,  and 
it  would  avoid  circuity.  So,  if  a  sum  of  money  be  appointed  to  be  laid 
out  in  a  purchase,  and  the  lands  to  be  settled  in  tail ;  the  purchase  and 
settlement  shall  be  made  accordingly,  and  not  the  money  paid  to  the  party  ; 
for  the  remainder-man  has  a  chance  for  the  estate,  in  case  the  tenant  in 
tail  in  possession  die  without  issue  before  any  recovery  suffered,  which 
he  may  omit  through  ignorance  or  forgetfulness,  or  he  may  be  prevented 
by  death  before  he  has  completed  it. 

1  Abr.  Ex.  Ca.  395. 

II  But  now  by  the  40  G.  3,  c.  56,  it  is  enacted,  that  in  all  cases  where 
Vol.  X.— 29 


226  USES    AND  TRUSTS. 

(II)  What  Estate  Trustee  shall  convey,  and  to  whom. 

money  under  the  control  of  any  court  of  equity,  or  to  which  any  indivi- 
duals, as  trustees  are  possessed  or  entitled,  shall  be  subject  to  be  invested 
in  lands,  &c,  to  be  settled  upon  any  persons  in  such  manner  that  it  would 
be  competent  in  case  such  money  had  been  invested  in  the  purchase  of 
real  estates  for  the  person  who  would  be  tenant  of  the  first  estate-tail 
therein,  either  alone  or  together  with  the  owner  of  the  particular  preced- 
ing estate,  by  deed,  fine,  or  recovery,  or  any  of  them,  or  other  lawful  act 
to  bar  the  estate-tail  and  the  interests  of  the  remainder-man,  it  shall  not 
be  necessary  to  have  such  money  actually  invested  in  lands,  in  order  that 
such  estates  and  remainders  may  be  so  barred,  but  that  it  shall  be  lawful 
for  the  High  Court  of  Chancery,  or  such  court  under  control  of  which 
such  money  shall  be,  and  in  case  of  trustees,  for  the  High  Court  of  Chan- 
cery in  a  summary  way  upon  petition  of  the  person  who  would  be  tenant 
of  the  first  estate-tail,  and  of  the  person  who  would  be  owner  of  the  pre- 
cedent particular  estate,  to  order  the  moneys  subject  to  such  trusts  to 
be  paid  to  such  petitioner,  to  be  paid  and  applied  in  such  manner  as  the 
petitioner  shall  appoint  and  the  court  shall  approve. || 

Where  an  estate  was  limited  to  A  and  B  in  trust  for  C,  and  the  heirs 
of  his  body,  proviso,  that  if  he  die  without  issue,  then  in  trust  for  D  for 
life,  with  remainder  over,  and  C  brought  his  bill  to  have  the  trustees 
make  a  conveyance  of  the  legal  estate  to  him,  and  that  it  might  be  to  him 
in  fee,  to  prevent  him  from  suffering  a  recovery,  the  trustees  by  answer 
submitted  to  the  court :  but  the  other  remainder-men,  who  were  defend- 
ants, opposed  the  executing  any  legal  estate  to  C,  because  he  would  then 
suffer  a  recovery,  and  defeat  the  intent  of  the  donor,  which  was,  that  it 
should  be  preserved  for  them,  in  case  C  had  no  issue.  They  alleged, 
that  C  had  married  improvidently  and  was  extravagant,  and  would  spend 
the  estate,  and  cited  the  case  at  the  end  of  Twine's  case,  3  Co.,  where, 
if  an  improvident  man  makes  a  voluntary  settlement  to  put  it  out  of  his 
power  to  spend  his  estate,  this  settlement  shall  be  supported  even  at  law  ; 
and  therefore  a  court  of  equity  will  never  help  an  extravagant  man  to  de- 
stroy such  a  settlement  as  this  ;  and  that,  in  the  case  of  Sir  Fra.  Garrard, 
the  Lord  Ch.  Jefferies  had  refused  to  decree  the  trustees  for  Sir  Francis 
and  the  heirs  of  his  body,  with  a  remainder  to  a  charity,  to  convey  the 
legal  estate,  so  as  to  enable  him  to  suffer  a  recovery.  On  the  other  side, 
it  was  said,  there  was  no  reason  any  trustee  should  hold  my  estate,  whether 
I  will  or  no ;  and  that,  if  a  court  of  equity  did  not  decree  a  conveyance 
in  such  case,  it  would  be  establishing  a  perpetuity  ;  and  that  the  constant 
course  of  this  court  is,  that  when  money  is  given  to  be  laid  out  in  a  pur- 
chase to  be  settled  in  tail,  with  remainders  over,  the  court  will  decree 
the  money  to  him  that  was  to  be  tenant  in  tail,  if  he  desire  it,  to  prevent 
circuity.  But  the  Master  of  the  Bolls  decreed  the  trustees  to  execute  a 
conveyance  to  C  in  tail,  but  would  not  decree  the  conveyance  to  be  in 
fee,  though  pressed  to  it ;  and  he  said  there  may  be  many  reasons  why 
a  court  of  equity  would  not  decree  a  conveyance  at  all  in  such  a  case, 
sometimes  for  a  politic  reason,  as  if  it  were  to  enable  a  nobleman  to  suffer 
a  recovery,  and  leave  the  honour  bare,  without  estate  ;  or  if  the  party 
were  a  notorious  spendthri  ft,  or  when  the  estate-tail  was  only  by  implication, 
as  he  said  ho  took  it  in  Sir  Fra.  Garrard's  case  :  and  he  thought  it  would 
be  an  ungodly  thing  in  the  trustees  to  execute  a  conveyance  of  the  legal 
estate  in  such  case  as  this  at  the  bar,  without  a  decree  of  the  court. 
Hil.  1701,  Saunders  and  Nevil.  Note:  Though  the  court  would  not 
decree  a  conveyance  in  Sir  Fra.  Garrard's  case,  yet  he  suffered  a  re- 


USES  AND  TRUSTS.  007 

(II)  What  Estate  Trustee  shall  convey,  and  to  whom. 

eovery  as  cestui  que  trust  in   tail,  which  was  held  good,  and  tnc  estate 
enjoyed  under  it  discharged  of  the  charity. 

1  Abr.  Eq.  Ca.  1592. 

Where  a  question  arises  how  a  trust  ought  to  be  executed  by  a  convey- 
ance, there  is  no  better  rule  than  to  observe  and  follow  what  luix  been  done 
at  law  in  executing  conditions  that  are  matters  executory,  and  to  be  per- 
formed so  far  as  the  case  will  admit  of.     Per  Cowper,  0. 

2  Yern.  73G,  pi.  G44,  Xe  we  omen  v.  Bavkham, 

If  tenant  for  life  and  remainder -man  in  tail  join  in  a  bill  against  trus- 
tee, the  court  will  decree  the  trustee  to  convey  to  them,  or  to  whom  they 
appoint ;  and  possibly  he  may  pay  costs  for  refusing  to  convey,  and  put- 
ting his  cestui  que  trust  to  the  charge  of  an  unnecessary  suit. 

2  Yern.  340,  Bowatcr  v.  Elly. 

A  devised  lands  to  a  company  in  trust  to  convey  to  B  for  life,  remain- 
der to  his  first,  &c,  sons  for  their  lives  successively,  and  so  to  their  issue 
male  for  their  lives  only,  remainder  over.  Per  cur. — An  attempt  to  make 
a  perpetual  succession  of  estates  for  life  is  vain,  and  an  impracticable 
perpetuity.  However,  the  trustees  must  make  as  strict  a  settlement  as 
may  be,  so  that  the  persons  in  being  are  to  be  made  only  tenants  for  life ; 
but  where  the  limitation  was  to  be  to  the  son  not  in  being,  there  he 
must  be  made  tenant  in  tail-male. 

2  Vera.  737,  pi.  G4G,  Ilumberston  v.  Ilumherston. 

A  husband,  as  administrator  to  his  wife,  obtained  a  decree  against  the 
trustees  to  raise  her  portion ;  but  he,  being  a  younger  brother,  having 
made  no  settlement  on  her,  and  having  a  son  by  her,  the  money  was  de- 
creed to  be  raised,  and  put  out  for  his  benefit  for  life,  then  to  the  son  for 
life  ;  and  if  he  leaves  issue,  and  the  father  survives,  he  to  have  it. 

I  E  [.  Abr.  Cas.  392,  Whytham  v.  Cawthora. 

[A,  in  consideration  of  an  intended  marriage,  entered  into  articles,  by 
which  he  covenanted  with  trustees  to  settle  an  estate  to  the  use  of  himself 
for  life,  without  impeachment  of  waste,  remainder  to  his  intended  wife  for 
life,  remainder  to  the  use  of  the  heirs  male  of  his  body  upon  the  bodv  of 
his  intended  wife  to  be  begotten,  and  the  heirs  males  of  such  heirs  males 
issuing,  remainder  to  the  right  heirs  of  the  said  A  for  ever ;  and  cove- 
nanted, that  in  case  the  said  limitations  were  not  thereafter  well  raised, 
according  to  the  intent  of  the  said  articles,  that  he  and  his  heirs  would 
stand  seised  of  the  premises,  until  a  further  assurance  thereof  should  be 
made  to  such  uses,  intents,  and  purposes,  as  in  the  articles  were  before 
expressed  and  declared.  The  marriage  took  effect,  and  A  had  issue  four 
sons  and  two  daughters.  The  articles  were  laid  In/  unnoticed  for  several 
years,  and  A  levied  a  fine  of  the  lands  (supposing  himself  to  be  tenant  in 
tail  under  the  articles;)  and  afterwards,  both  the  trustees  being  dead, 
without  requesting  a  settlement,  A's  eldest  son  having  married  against 
his  father's  consent,  and  by  several  other  acts  of  weakness  and  disobedi- 
ence much  offended  him,  A,  by  deed  reciting  the  said  articles,  and  the 
weakness  and  disobedience  of  his  eldest  son,  declared,  that  the  said  fine  so 
levied  by  him,  should  inure  to  the  use  of  himself  for  life,  without  impeach- 
ment of  waste,  remainder  to  his  wife  for  life,  remainder  to  his  second  son 
in  tail-male,  with  like  remainders  to  his  two  younger  sons,  with  remainder 
to  his  own  right  heirs  ;  and  after  making  a  like  settlement  of  other  hinds, 
A  died  intestate,  leaving  a  great  personal  estate,  and  leaving  a  real  estate 


228  USES  AND  TRUSTS. 

(II)  What  Estate  Trustee  shall  convey,  and  to  whom. 

in  Ireland,  and  new-purchased  lands  in  England,  together  of  the  value  of 
1000/.  per  annum,  and  upwards.  Upon  his  death,  the  estate  in  Ireland 
and  the  new-purchased  lands  descended  to  his  eldest  son,  who  also  became 
entitled  to  his  share  (upwards  of  9000/.)  of  the  personal  estate.  The  second 
son  entered  upon  the  settled  estates ;  and  the  eldest  son  having  got  pos- 
session of  the  articles,  which  it  appeared  had  been  thrown  by  several 
years  as  useless,  brought  his  bill  for  a  specific  performance  thereof. 
1  Eq,  Abr,  387,  Trevor  v.  Trevor. 

It  was  insisted  for  the  defendant,  that  though  by  the  first  part  of  the 
articles  they  seemed  to  be  executory,  yet  by  the  covenant  to  stand  seised 
in  the  last  part  of  them,  they  were  actually  and  immediately  executed ; 
that  he  thereby  covenanted  to  stand  seised  to  the  before-mentioned  uses, 
till  a  settlement  was  made  accordingly  ;  that  no  settlement  having  been 
made,  the  uses  continued  to  be  executed  by  virtue  of  that  covenant ;  that 
by  these  uses  he  was  plainly  tenant  in  tail  and  by  the  fine  had  bound  his 
issue  and  made  himself  master  of  the  estate,  and  might  dispose  of  it  as  he 
thought  fit.  But  Lord  Chancellor  said,  that  upon  articles  the  ease  was 
stronger  than  on  a  will :  that  articles  were  only  minutes  or  heads  of  the 
agreement  of  the  parties,  and  ought  to  be  so  modelled,  when  they  come 
to  be  carried  into  execution,  as  to  make  them  effectual.  That  the  inten- 
tion was  to  give  A  only  an  estate  for  life ;  that  if  it  had  been  otherwise, 
the  settlement  would  have  been  vain  and  ineffectual ;  and  it  would  have 
been  in  A's  power,  as  soon  as  the  articles  were  made,  to  have  destroyed 
them  ;  that  the  covenant  to  stand  seised  was  until  such  time  as  the  said 
uses  were  well  raised,  according  to  the  true  intent  and  meaning  of  the 
articles.  Tliai  jf  a  settlement  had  been  made  defective  in  any  particular, 
h  would  not  bav«3  been  final  or  conclusive ;  that  a  second  settlement  must 
have  been  made  till  the  uses  were  well  and  truly  raised  ;  and  that  this  cove- 
nant for  ever  subsisted  till  such  settlement  should  be  made  ;  that  he  hoped 
never  to  see  the  time  ^hen  the  court  would  so  far  have  power  as  to  judge 
what  behaviour  of  a  son  should  amount  to  a  forfeiture  of  his  estate;  and 
therefore  thought,  if  a  settlement  had  been  made,  no  misbehaviour  of  the 
son  could  amount  to  a  forfeiture  of  it.  That  this  estate  being  specifically 
agreed  to  be  settled,  it  was  a  trust  for  the  eldest  son,  which  passed  with 
the  lands  into  whose  hands  soever  they  came,  and  could  not  be  defeated  by 
any  act  of  the  father  or  the  trustees.  And  therefore  he  decreed  a  con- 
veyance to  the  plaintiff,  and  the  heirs  male  of  his  body,  and  an  account 
of  the  profits  from  his  father's  death,  and  the  deeds  and  writings  to  be  de- 
livered up.  This  decree  was  afterwards  affirmed  in  the  House  of  Lords. 
||Soc  Hilton  v.  Biscoe,  2  Ves.  304,  308  ;||  2  Brown,  Cases  Pari.  122. 

So  where  the  husband,  before  marriage,  agreed  by  articles  to  settle 
lands  to  the  use  of  himself  and  his  intended  wife  for  their  lives,  and  the 
life  of  the  survivor,  and  afterwards  to  the  use  of  the  heirs  of  his  body  on 
the  wife,  and  after  the  marriage,  by  settlement  reciting  the  articles,  con- 
veyed the  lands  to  the  use  of  himself  and  his  wife  for  their  lives,  and  the  life 
of  the  survivor,  remainder  to  the  use  of  the  heirs  of  his  body  by  his  wife ; 
it  was  held  not  to  be  a  proper  execution  of  the  articles,  though  the  articles 
did  not  expressly  mention  the  intent  to  provide  for  the  issue.  For, 
Lord  Talbot  observed,  it  could  not  be  doubted  but  that,  upon  an  applica- 
tion to  the  court  for  carrying  the  articles  into  execution,  it  would  have 
decreed  it  to  be  done  in  the  strictest  manner,  and  would  never  have  left 


USES  AND  TRUSTS.  o29 

(II)  What  Estate  Trustee  shall  convey,  and  to  whom. 

it  in  the  husband's  power  to  defeat  and  annul  every  thing  he  had  been 
doing,(a)  and  the  nature  of  the  'provision  was  strong  enough  for  that 
purpose,  without  any  express  words. 

Strcatfield  v.  Streatfield,  Cas.  temp.  Talb.  176.]  ||(a.)  Sed  vide  Chambers  v.  Cham- 
bers, 5  Vin.  513  ;  Fitzgibb.  127  ;  1  Sand,  on  Uses,  311. || 

Upon  a  marriage,  articles  were  entered  into,  whereby  it  was  agreed, 
that  the  wife's  portion  should  be  laid  out  in  the  purchasing  of  lands,  which 
should  be  settled  on  the  husband  and  wife  for  their  lives,  and  the  life  of 
the  longest  liver  of  them,  and  after  to  the  heirs  of  the  body  of  the  wife 
by  the  husband  to  be  begotten ;  yet  the  Master  of  the  Rolls  decreed  the 
settlement  to  be  to  the  first  and  other  sons,  &c,  so  as  the  husband  and 
wife  might  not  have  power  to  bar  the  issue. 
1  Eq.  Abr.  Ca.  392,  Jones  v.  Laughton. 

So  where,  on  a  treaty  of  marriage  between  the  defendant  and  the  plain- 
tiff Joanna,  the  defendant  entered  into  a  bond  to  the  plaintiff  Joseph, 
father  of  the  plaintiff  Joanna,  with  condition  to  surrender  certain  copyhold 
lands  to  the  use  of  himself  for  life,  remainder  to  the  plaintiff  Joanna  for 
life,  remainder  to  the  heirs  of  their  two  bodies  to  be  begotten,  with  re- 
mainder to  the  heirs  of  the  husband ;  the  marriage  took  effect,  and  a  bill 
was  brought  against  the  husband  to  compel  a  surrender  pursuant  to  the 
intent  of  this  bond :  the  husband,  making  default  at  the  hearing,  was 
decreed  to  surrender  to  the  use  of  himself  for  life,  remainder  to  the  use 
of  his  wife  for  life,  remainder  to  the  use  of  their  first  and  other  sons  in 
tail  general  successively,  with  a  remainder  to  the  daughters  of  their  two 
bodies  to  be  begotten  in  tail  general ;  and  in  the  mean  time,  till  such  sur- 
render was  made,  the  court  declared  that  the  copyhold  land  should  be 
held  and  enjoyed  according  to  these  uses. 

Nandick  v.  Wilkes,  1  Eq.  Ca.  Abr.  393;  Gilb.  Eq.  II.  114,  S.  C,  under  the  name 
of  Nandike  v.  Wilkes,  in  totidem  verbis.  Note. — This  decree  was  on  a  bond,  where, 
though  the  penalty  seems  to  have  been  the  only  sanction  intended  for  securing  the 
performance  of  the  condition,  yet  a  specific  execution  was  decreed,  and  in  such  a  man- 
ner too  as  effectually  to  secure  the  issue  from  being  defeated  by  making  them  pur- 
chasers. But  note,  in  Gilbert,  there  is  no  mention  in  the  decree  of  the  remainder  to 
the  wife  for  life. 

[Where  articles  were  entered  into  by  the  husband,  in  which  he  cove- 
nanted that  as  well  all  the  real  estate  that  he  had  then  in  Ireland,  as  all  the 
lands  and  tenements  which  he  should  purchase  during  the  life  of  his  in- 
tended wife,  should  descend  and  come  to  the  heirs  male  to  be  begotten  on 
the  body  of  the  intended  tvife  by  the  husband,  and  should  be  secured  and 
settled  on  the  said  heirs  male  by  the  husband,  as  the  counsel  of  the  in- 
tended wife  should  advise.  Upon  an  appeal  to  the  House  of  Lords,  from 
a  decree  of  the  Court  of  Chancery  in  Ireland,  the  decree  Avas  reversed ; 
and  it  was  ordered  that  a  son  of  the  marriage  should  be  deemed  a  tenant 
in  tail,  under  the  articles,  and  to  hold  and  enjoy  the  lands  against  all 
persons  claiming  under  a  subsequent  settlement  by  his  father ;  who  had 
levied  fines  and  suffered  recoveries  to  bar  the  supposed  entail. 
Cusack  v.  Cusack,  1  Bro.  Ca.  Pari.  470. 

And  in  a  case  where  the  husband  entered  into  a  bond  to  surrender  copy- 
holds to  the  use  of  himself  for  life,  remainder  to  his  wife  for  life,  remain- 
der to  the  heirs  of  their  bodies,  then  to  the  husband  in  fee ;  upon  a  bill 
against  the  husband,  after  the  marriage,  for  execution  of  this  engagement, 
the  decree  was,  for  him  to  surrender  to  the  use  of  himself  for  life,  remain- 

U 


230  USES  AND  TRUSTS. 

(II)  What  Estate  Trustee  shall  convey,  and  to  -whom. 

dcr  to  the  use  of  his  wife  for  life,  remainder  to  the  use  of  the  first  and 
other  sons  in  tail  general  successively,  with  remainder  to  the  daughters 
in  tail  general. 

Nartdick  v.  Wilkes,  1  Eq.  Abr.  303,  c.  5  ;  Gilb.  Eq.  R.  114. 

So,  where  the  intended  wife's  estate  was  articled  to  be  settled  on  the 
husband  and  wife,  and  on  the  heirs  of  their  Uvo  bodies,  Lord  Cowper  ad- 
mitted, that  if  no  settlement  had  been  made,  the  court  would  have  taken 
care  to  secure  to  the  daughters  the  provision  intended  them  by  the  articles. 

Vide  Burton  v.  Hastings,  infra,  232. 

Where,  by  articles  previous  to  marriage,  it  was  agreed  to  purchase 
lands,  and  settle  them  to  the  use  of  the  husband  for  life,  then  of  the  wife 
for  life,  remainder  to  the  use  of  the  heirs  of  her  body  by  him;  they  pur- 
chased and  joined  in  a  recovery  to  the  use  of  a  mortgagee  in  fee.  Upon 
a  bill  by  the  eldest  son  after  the  death  of  his  mother,  insisting  that  he  was 
entitled,  on  the  construction  of  these  articles  in  equity,  to  have  the  estate 
settled  to  the  first,  &c,  son  in  tail-male,  Sir  Joseph  Jekyll  said,  that  if 
this  had  been  a  common  limitation,  he  should  have  thought  what  was 
insisted  on  was  right,  and  that  the  mortgagee  must  have  lost  his  estate. 
But  that  this  was  particular  to  the  heirs  of  the  body  of  the  ivife  by  the 
husband,  and  being  ex  provisione  viri,  would  secure  the  children  against 
the  father  alone  ;  and  that  it  might  be  the  real  intent  that  both  might  bar, 
comparing  it  to  a  poiver  of  revocation  both  by  the  father  and  mother; 
and  the  defendant  was  therefore  well  barred. 
Whateley  v.  Kemp,  cited  2  Yes.  358. 

So,  in  a  subsequent  case,  Lord  Hardwicke  said  he  might  compare  it  to 
the  case  where,  by  a  settlement  of  lands,  the  wife  has  an  estate  ex  provi- 
sione virie  ;  the  court  has  refused  to  interpose  to  settle  the  estate  otherwise, 
because  the  intent  will  prevail,  since  she  cannot  alien  by  stat.  11  H.  7 

Green  v.  Ekin,  2  Atk.  473. 

Again,  by  marriage  articles  customary  lands  of  inheritance  of  the  in- 
tended husband,  holden  by  copy  of  court-roll,  were  agreed  to  be  settled 
to  the  use  of  the  intended  husband  for  life,  remainder  to  his  intended  wife 
for  life,  and  after  the  deceases  of  both,  to  the  use  of  the  heirs  of  her  body 
by  him  if  he  survived  her,  but  if  she  survived  him,  to  the  heirs  of  his  body 
on  her  body  to  be  begotten,  remainder  to  his  own  right  heirs.  The  mar- 
riage was  had,  and  the  husband  afterwards  surrendered  the  lands  to  the 
uses  mentioned  in  the  articles,  and  was  admitted  accordingly.  And  at 
the  same  court  he  and  his  wife  surrendered  to  certain  uses.  And  on  a 
question  between  a  son  of  the  marriage  claiming  under  the  entail  in  the 
articles,  and  others  claiming  under  the  said  surrender  by  the  husband  and 
wife:  one  of  the  points  made,  and  that  on  which  the  decision  proceeded, 
was,  Whether  the  surrender  to  the  uses  in  the  articles  was  a  due  execu- 
tion of  the  uses  of  the  articles  ;  and  whether,  by  the  subsequent  surrender, 
the  husband  gained  an  absolute  power  over  the  wife  ?  We  are  to  ob- 
serve, that  estates-tail  were  barable  by  surrender,  according  to  the  custom. 

Highway  et  nl.  v.  Banner  et  al.,  1  Bro.  Chan.  Ca.  584.  ||See  Fearne's  C.  R.  34, 
95,  (7th  edit.,)  Brudenell  v.  Elwes,  7  Ves.  390. || 

The  Master  of  the  Rolls  said,  that  the  rule  had  been  settled  and  adhered 
to  in  many  cases,  that  articles  for  a  settlement  on  a  husband,  and  the  heirs 
of  his  body,  should  be  carried  into  execution  in  strict  settlement ;  and  it 


USES  AND  TRUSTS.  031 

(II)  What  Estate  Trustee  shall  convey,  and  to  whom. 

had  been  considered  as  vain  to  make  a  settlement  which  instantly  might 
be  defeated  by  a  recovery ;  but  the  doctrine  had  never  gone  so  far,  where 
that  party  coixld  not  suffer  a  recovery  alone.  He  observed,  that  it  was 
anciently  a  common  mode  of  settlement  to  the  husband  for  life,  to  the 
wife  for  life,  and  to  the  heirs  of  the  body  of  the  wife  by  the  husband ;  it 
was  thought  a  sufficient  precaution  to  preserve  the  entail,  that  it  could 
not  be  destroyed  unless  both  husband  and  wife  concurred.  That  in  the 
principal  case,  the  limitations  appeared  to  be  anxiously  worded ;  the  con- 
currence of  both  parties  was  necessary  to  destroy  the  entail ;  it  was  out 
of  the  power  of  the  survivor,  He  was  not  to  look  to  the  impropriety  of 
what  had  been  done,  but  to  the  powv-i  the  parties  had  to  do  it,  and  he 
thought  that  point  clear. 

In  a  case  where  money,  in  the  hands  of  trustees,  was  articled  to  be  laid 
out  in  the  purchase  of  lands  to  be  settled  on  the  husband  fur  life,  remain- 
der to  the  intended  wife  for  life  for  her  jointure,  remainder  to  the  first  and 
other  son  and  sons  of  the  marriage  in  tail-male  successively,  chargeable 
with  2000£.  for  younger  children,  remainder  to  the  husband  in  fee;  and 
the  husband's  father  by  the  same  articles  covenanted  to  settle  other  lands 
on  the  husband,  and  the  heirs  male  of  his  body,  remainder  to  the  heirs  of 
the  father:  upon  a  question,  Whether  a  subsequent  settlement  of  the  last 
mentioned  lands  by  the  husband's  father,  on  the  husband  and  the  heirs 
male  of  his  body,  with  remainder  to  the  father  in  fee,  was  a  good  perform- 
ance of  the  agreement ;  or  whether  the  limitation  ought  not  to  have  been  on 
the  husband  for  life,  with  remainder  to  the  first  and  other  so)is  in  tail-male 
successively  in  strict  settlement?  Lord  Chancellor  King  held,  that  the 
settlement  was  a  good  execution  of  the  agreement,  and  therefore  confirmed 
the  settlement.  He  said,  that  by  the  articles  those  lands  were  not  intended 
to  be  settled  as  a  provision  for  the  children  of  that  marriage,  they  were 
taken  care  of  by  the  other  part  of  the  articles  by  the  trust-money  ;  and 
it  Avas  not  like  the  common  case  of  articles  for  a  settlement  on  the  issue 
of  the  marriage  where  no  other  provision  or  care  is  taken  for  them ;  and 
the  different  manner  of  penning  the  articles  in  relation  to  the  trust- 
money,  and  as  to  those  lands,  the  one  to  be  in  strict  settlement  to  the  first, 
&c,  son  of  that  marriage,  the  other  limited  to  the  husband  and  the  heirs 
male  of  his  body  generally,  and  not  tied  up  to  the  issue  of  that  marriage, 
showed  plainly  the  parties  understood,  and  had  in  contemplation  the  dif- 
ference between  a  strict  settlement  upon  the  issue  of  that  marriage,  and 
a  general  settlement  upon  the  husband  and  the  heirs  male  of  his  body. 

Chambers  v.  Chambers,  Fitzgibb.  II.  127;  2  Eq.  Abr.  35,  c.  4 ;  II 1  Sand,  on  Uses, 
311.|| 

And  accordingly,  in  a  case  of  marriage  articles,  where  part  of  the  estate 

was  limited  to  the  husband  for  life,  remainder  to  the  wife  for  life,  and  after 

the  death  of  the  survivor,  remainder  to  the  heirs  of  the  body  of  the  wife 

by  the  husband,  another  part  to  the  husband  for  life,  remainder  to  the 

heirs  of  his  body,  remainder  to  the  wife;  upon  a  bill  filed  by  the  eldest  son 

to  have  the  articles  carried  into  execution  strictly  to  the  first,  &c,  son  in 

tail,  Lord  Hardwicke  observed,  there  was  a  difference  in  the  penning  of  the 

two  limitations :   on  the  first  they  might  have  it  in  view  to  leave  it  in 

the  power  not  of  the  father  only,  but  of  both  to  vary;  but  on  the  second 

there  could  be  no  sense  of  the  limitation,  but  as  the  son  contended  for; 

otherwise  it  would  be  absolutely  in  the  power  of  the  father,  by  fine,  to  bar 

it7  and  defeat  all  the  issue.     They  intended  the  wife  should  have  a  join- 


232  USES  AND  TRUSTS. 

(II)  What  Estate  Trustee  shall  convey,  and  to  whom. 

turc  in  the  one,  in  the  other  not.  It  seemed  a  strong  distinction  on  the 
face  of  the  articles,  and  there  had  been  cases  adjudged  on  that.  That 
where  by  articles  part  of  an  estate  was  limited  to  father  for  life,  to  wife  for 
life,  to  first  and  every  other  sons  and  daughters  in  tail,  another  part  to  tes- 
tator for  life,  and  the  heirs  male  of  his  body  by  that  ivife,  Lord  Macclesfield 
said,  if  that  had  been  the  sole  limitation,  he  should,  without  scruple,  decree 
in  strict  settlement  according  to  the  common  rule ;  but  where  the  parties  had 
shown  they  knew  the  distinction  when  to  put  it  out  of  the  poiver  of  the  father, 
and  when  to  leave  it  in  his  power,  he  would  not  vary  the  last  limitation ; 
decreeing  to  the  father  in  tail  as  to  the  last,  though  not  as  to  the  first. 
That  as  in  the  principal  case  there  was  a  difference  in  the  penning  of  the 
articles,  in  one  of  which  they  might  intend  to  leave  it  in  the  power  of  the 
father,  in  the  other  not  in  his  power  to  do  it  alone,  it  was  a  reasonable  way. 

Howell  v.  Howell,  2  Ves.  358.  The  report  in  Vesey  does  not  ascertain  the  case 
thus  cited  by  Lord  Hardwicke. 

Articles  were  made  previous  to,  and  in  consideration  of  a  marriage,  for 
settling  lands  to  the  use  of  the  husband  for  life,  remainder  to  the  wife  for 
life,  remainder  to  the  heirs  of  the  body  of  the  wife  by  the  husband  begotten, 
remainder  to  the  husband  in  fee ;  and  before  the  marriage  a  settlement  was 
made  reciting  the  articles,  and  expressed  to  be  in  pursuance  thereof,  limiting 
the  lands  to  the  use  of  the  husband  for  life,  remainder  to  the  wif"  *■•»  life, 
remainder  to  the  heirs  of  the  body  of  the  husband  by  the  wife,  iv..iainder 
to  him  in  fee.  There  was  issue  of  the  marriage  one  son ;  the  father  married 
again,  had  several  other  children,  and  having  procured  his  son,  without 
any  consideration,  to  join  with  him  in  mortgaging  the  estate,  and  limiting 
the  fee-simple  and  equity  of  redemption  to  the  father ;  upon  a  bill  after- 
wards brought  by  the  son  to  compel  his  father  to  resettle  the  land  on  the 
son,  after  his  (the  father's)  death,  pursuant  to  the  articles, 

Lord  Chancellor  held  it  was  a  plain  mistake  in  making  the  settlement 
vary  from  the  articles,  which  were  prudent  articles;  and  the  settlement, 
said  to  be  made  pursuant  thereto,  showed  there  was  no  alteration  of  the 
intention,  nor  any  new  agreement  between  the  making  of  the  articles  and 
the  settlement ;  and  this  appearing  on  the  face  of  the  articles  and  settle- 
ment, the  length  of  time  (about  twenty-five  years)  was  immaterial.  And 
he  decreed  the  father  and  his  second  wife  to  join  in  a  conveyance  to  settle 
the  estate  as  by  the  articles,  viz.,  to  the  father  for  life,  remainder  to  the 
son  in  tail ;  but  as  to  the  mortgage,  the  son  having  joined  in  it,  the  court 
eould  not  set  it  aside,  but  directed  the  father  to  keep  down  the  interest 
during  his  life. 

Honor  v.  Honor,  2  Vera.  C58  ;  1  P.  Wins.  123. 

But  where  marriage  articles  were  entered  into  for  settling  the  wife's 
estate  on  the  husband  and  wife,  and  on  the  heirs  of  their  tivo  bodies  to  be 
begotten  :  after  the  marriage,  a  settlement  was  made  of  the  lands  upon  the 
husband  and  wife  for  their  lives,  remainder  to  the  heirs  of  the  body  of  the 
wife  by  her  said  husband :  there  was  issue  of  the  marriage  one  daughter 
only ;  and  after  the  death  of  the  husband,  his  widow  married  again,  joined 
in  a  fine  of  the  lands,  and  settled  them  to  other  uses  :  a  bill  was  brought 
by  the  daughter  of  the  first  marriage,  to  carry  the  articles  into  execution  ; 
for  that  no  care  was  taken  of  the  daughters  by  the  settlement,  as  the  limita- 
tion to  the  heirs  of  the  body  of  the  wife  by  her  first  husband  made  her 
tenant  in  tail ;  and  consequently  left  her  the  power  to  bar  them,  which  was 
contrary  to  the  intent  of  the  articles,  that  being  to  make  an  effectual  pro- 


USES  AND  TRUSTS.  233 

(II)  What  Estate  Trustee  shall  convey,  and  to  whom. 

vision  for  all  the  issue  of  that  marriage.  But  Lord  Cowper  dismissed  the 
bill ;  saying,  if  no  settlement  had  been  made,  and  application  had  been 
made  to  the  court  for  making  one  pursuant  to  the  articles,  the  court 
would  have  taken  care  to  have  secured  to  the  daughters  the  provision 
intended  them  by  the  articles.  But  a  settlement  having  been  actually 
made  and  accepted  by  the  parties,  he  could  make  no  alteration  in  it. 
Burton  v.  Hastings,  Gilb.  Eq.  R.  113  ;  Eq.  Abr.  393. 

A^ain,  articles  were  entered  into  for  settling  lands  to  the  use  of  B  the 
intended  husband  for  life,  without  waste,  remainder  to  M  the  intended 
wife  for  life,  remainder  to  the  heirs  male  of  the  body  of  B  by  31,  remain- 
der to  the  heirs  male  of  the  body  of  B  by  any  other  wife,  remainder  to 
the  heirs  female  of  the  body  of  B  by  the  said  M,  with  leasing  and  join- 
turing powers  to  B.  Afterwards  and  before  the  marriage,  a  settlement 
was  made,  and  mentioned  to  be  in  pursuance  and  performance  of  the 
articles ;  and  the  lands  were  thereby  limited  to  B  for  life,  remainder  to 
M  for  life,  remainder  to  the  first,  &c,  son  of  the  marriage  successively 
in  tail-male,  remainder  to  the  first,  &c,  son  of  B  by  any  other  wife  in 
tail-male  successively,  remainder  to  the  heirs  of  the  body  of  the  said  B  by 
the  said  31,  remainder  over.  They  had  issue  only  one  daughter,  who 
died,  leaving  two  daughters.  B  having  an  estate-tail  under  the  limita- 
tion to  the  heirs  of  the  body,  $c,  suffered  a  recovery,  sold  part  of  the 
lands,  devised  the  residue,  and  died.  The  grand-daughters  brought  their 
bill  in  the  Exchecpuer  against  the  executors  of  B  to  rectify  the  mistake 
in  the  settlement,  in  limiting  an  estate-tail  to  B,  instead  of  limiting  it  in 
strict  settlement,  as  by  the  articles  it  ought  to  have  been.  The  articles 
were  made  in  December,  the  settlement  in  March,  1G85 ;  the  sale  of  the 
lands  in  1698,  and  the  will  in  1722 :  the  defendant  pleaded  the  settle- 
ment, the  recovery,  the  will,  and  the  long  enjoyment ;  but  the  plea  was 
overruled  by  Lord  Chief  Baron  Gilbert  and  the  other  barons ;  and  after 
hearing  the  cause,  Lord  Chief  Baron  Pengelly  and  the  other  barons  dis- 
missed the  bill  without  costs  ;  it  appearing  to  them  dangerous  to  set  aside 
a  settlement,  which  seemed  to  have  been  solemnly  and  deliberately  made. 
But  on  an  appeal  to  the  Lords,  this  dismission  was  reversed,  and  the 
lands  not  sold  were  decreed  to  be  conveyed  to  the  grand-daughters  and 
heirs  female  of  their  bodies,  as  tenants  in  common,  with  cross  remainders 
to  them  in  tail  female ;  and  the  devisee  to  account  for  the  profits,  and  the 
executor  to  account  for  the  purchase-money  received  by  B  for  the  lands 
by  him  sold,  and  to  pay  interest  for  the  same ;  the  writings  to  be  brought 
into  the  Court  of  Exchequer,  and  possession  to  be  delivered  to  the  appel- 
lants ;  and  the  principal  moneys  arising  by  the  said  sale,  to  be  laid  out 
in  lands,  to  be  settled  to  the  same  uses  as  the  lands  unsold  were  decreed 
to  be  conveyed  to. 

2  P.  Wms.  349,  West  v.  Errissey.  ||See  Randall  v.  Willis,  5  Yes.  202 ;  Home  v. 
Barton,  Cooper,  257  ;||  3  Bro.  Cas.  Pari.  327. 

Marriage  articles  were  entered  into  for  settling  lands  to  the  use  of  the 
husband  D  for  life,  without  waste,  remainder  to  trustees  and  their  heirs 
during  his  life,  to  support  contingent  remainders,  remainder  in  part  to  the 
wife  E  for  her  jointure,  remainder  as  to  the  whole  to  first,  &C,  son  of  the 
marriage,  in  tail-male  successively,  remainder  to  the  heirs  -male  of  the  body 
of  the  husband,  (a.  e.  by  any  wife,)  remainder  to  the  heirs  of  his  body  by  his 
said  wife  E,  remainder  to  his  own  right  heirs,  with  a  clause  empowering 
husband  and  wife  to  make  leases ;  and  also  a  clause,  that  if  he  should  die 

Vol.  X.— 30  u  2 


234  USES  AiSD  TRUSTS. 

(II)  What  Estate  Trustee  shall  convey,  and  to  -whom. 

without  issue  male  by  his  said  wife,  if  there  should  be  one  daughter,  she 
should  have  3000?.,  and  if  there  were  more  daughters  than  one,  they  should 
have  4000?.  among  them ;  which  portions  were  to  be  secured  on  some 
part  of  the  estate.  It  happened  there  was  issue  of  the  marriage  only  one 
daughter.  D  survived  his  wife,  and  suffered  a  common  recovery  of  the 
lands,  and  made  another  settlement  of  them  in  consideration  of,  and  pre- 
vious to,  his  second  marriage ;  subject  as  to  part  to  a  trust  for  raising 
3000?.  for  his  daughter  by  his  first  wife,  in  satisfaction  of  the  portion  she 
was  entitled  to  under  the  first  articles,  and  maintenance  for  her  in  the  mean 
time.  The  question  was,  (here  being  notice  of  the  first  articles,)  whether 
the  limitation  in  the  first  articles  to  the  heirs  of  the  body  of  1)  by  E  his 
wife,  should  not  be  taken  as  if  it  had  been  to  the  daughters  of  D  by  his 
said  first  wife  ?  For  then  they  could  not  be  barred  by  the  recovery  con- 
sidering the  preceding  intermediate  limitation  to  the  heirs  male  of  his  body 
at  the  same  time  as  words  of  purchase.  It  was  insisted,  that  here  the 
limitation  to  the  heirs  of  the  body  of  D  by  E  his  first  wife,  must  be  the 
same  as  if  it  had  been  to  the  daughters:  for  it  could  not  be  intended  in 
favour  of  the  sons  of  that  marriage,  there  being  an  express  limitation 
before  to  them  ;  and  though  in  the  case  of  a  settlement,  there  beino-  a 
precedent  estate  for  life  to  D,  it  would  have  been  an  estate-tail  in  him 
barrable  by  the  common  recovery,  yet  it  was  otherwise  where  it  rested 
upon  articles ;  and  the  case  of  West  v.  Errisscy  was  cited.  (Supra.) 
Powell  v.  Price,  2  P.  Wms.  535. 

On  the  other  side  it  was  said,  and  resolved  that  the  3000?.  secured  by 
the  settlement  on  the  second  marriage,  was  an  actual  satisfaction  of  all 
demands  under  the  articles;  and  that  though  a  limitation  by  articles  to 
the  heirs  male  of  the  marriage,  after  an  express  estate  for  life  to  the  father, 
should  be  taken  to  mean  a  remainder  to  the  first,  &c,  son,  it  does  not 
follow  that  a  limitation  to  the  heirs  of  the  body  must  be  equivalent  to  a 
remainder  limited  to  daughters ;  especially  in  this  case,  where  they  were 
postponed  to  the  limitation  to  the  heirs  male  of  the  body  of  D  by  any 
wife  ;  and  where  there  was  an  express  pecuniary  provision  made  for  the 
daughters  by  the  first  wife ;  which  was  all  they  were  to  depend  upon. 

And  the  following  diversities  were  taken  by  the  court,  between  this 
last  case  and  the  case  of  West  and  Errissey ;  in  the  case  of  West  and 
Errissey,  no  portions  were  provided  for  the  daughters  of  the  first  mar- 
riage ;  in  the  last  case,  portions  in  all  events  were  secured  to  such  daugh- 
ters. In  the  case  of  West  v.  Errissey,  after  the  limitation  in  the  articles 
to  the  heirs  male  of  the  body  of  the  husband  and  wife,  and  the  remainder 
to  the  heirs  male  of  the  body  of  the  husband  by  any  wife,  came  the  re- 
mainder to  the  heirs  female  of  the  body  of  the  husband  by  the  first  wife, 
&c,  so  that  the  daughters  were  more  immediately  in  the  view  and  con- 
templation of  the  parties  than  in  the  last  case. 

See  Fearnc'a  C.  K.  10(5,  (7th  edit.) 

An  estate  was  articled  to  be  settled  on  the  husband  for  life,  sans  waste, 
remainder  to  the  heirs  male  of  his  body,  with  power  to  raise  portions  for 
younger  children.  A  settlement  was  afterwards  made,  before  marriage, 
in  pursuance  of  the  articles,  and  observing  the  very  words  of  the  articles. 
The  husband  afterwards  levied  a  fine  to  the  use  of  himself  in  fee,  and  by 
will  made  a  provision  for  his  son's  debts.  Lord  Hardwicke  said  it  was 
the  common  case ;  the  variation  from  the  intent  of  the  articles,  and  from 
the  ordinary  course  of  settlements  not  arising  from  any  new  agreement, 


USES  AND  TRUSTS.  035 

(II)  What  Estate  Trustee  shall  convey,  and  to  whom. 

(being  made  in  pursuance  of  the  articles,)  but  from  mistake  in  not  attend- 
in";  to  a  strict  settlement.  The  reason  of  which  was  unanswerable,  viz., 
that  on  a  settlement  for  valuable  considerations,  to  make  the  father  tenant 
in  tail  would  be  nugatory,  and  the  same  as  making  him  tenant  in  fee. 
But  the  son  having  submitted  to  and  taken  a  benefit  under  his  father's 
will,  must  be  bound  thereby ;  and  therefore,  though  he  was  entitled  to 
have  the  settlement  rectified  according  to  the  true  intent  of  the  articles, 
he  could  not  retain  both,  but  must  make  his  election. 

Roberts  v.  Kingsley,  1  Yes.  238.  Vide  1  Bro.  Chan.  Ca.  587,  of  election  in  these 
cases. 

By  articles  previous  to  marriage,  it  was  agreed  that  3000Z.  should  be 
laid  out  in  the  purchase  of  a  freehold  estate,  to  be  settled  on  the  husband 
for  life,  remainder  to  the  wife  for  life,  remainder  to  the  use  of  such  issue 
of  their  bodies,  in  such  parts  and  manner  as  the  husband  and  wife  should 
by  deed  or  writing  appoint ;  and  for  want  of  appointment  to  the  use  of  the 
issue  of  their  bodies,  remainder  to  the  right  heirs  of  the  husband.  There 
was  no  provision  for  younger  children.  The  husband  died  without  ap- 
pointment, leaving  his  wife  and  two  sons  and  a  daughter.  Upon  a  bill  by 
the  eldest  son  to  have  the  money  laid  out,  according  to  the  articles  in  land 
to  be  settled  on  him  in  tail,  remainder  to  his  brother  and  sister  in  tail,  with 
reversion  in  fee  to  himself;  and  a  cross  bill  by  the  younger  children  to 
have  the  lands  to  be  bought,  settled  on  them  equally  with  the  eldest  son. 
The  Master  of  the  Rolls  was  of  opinion,  that  the  lands  to  be  purchased 
ought  to  be  settled  in  strict  settlement,  and  limited  to  the  first,  &c,  sons 
in  tail,  with  remainder  (the  daughter  being  dead  without  issue)  to  the 
right  heirs  of  the  husband ;  and  decreed  accordingly. 
Dodd  v.  Dodd,  Ambl.  R.  274. 

» 

Lord  Talbot  laid  it  down  as  a  rule,  that  where  articles  are  entered  into 
before  marriage,  and  a  settlement  made  after  marriage,  different  from  those 
articles,  (as  if  by  articles  the  estate  was  to  be  in  strict  settlement,  and  by 
the  settlement  the  husband  is  made  tenant  in  tail,)  the  court  will  set  up  the 
articles  against  the  settlement.  But,  where  both  articles  and  settlement 
are  previous  to  the  marriage,  at  a  time  when  all  parties  are  at  liberty,  the 
settlement,  differing  from  the  articles,  will  be  taken  as  a  new  agreement 
between  them,  and  shall  control  the  articles.  And  although  in  the  case  of 
West  and  Errissey  the  articles  were  made  to  control  the  settlement  made 
before  marriage,  yet  that  resolution  did  not  contradict  the  general  rule  ;  for 
in  that  case  the  settlement  was  expressly  mentioned  to  be  made  in  pursu- 
ance and  performance  of  the  said  marriage  articles,  whereby  the  intent 
appeared  to  be  still  the  sanye  as  it  was  at  the  making  of  the  articles. 

Ca.  temp.  Talb.  20,  Legg  v.  Goldwirc.     { See  5  Ves.  J.  202,  Randall  v.  Willis. } 

Articles  were  entered  into  for  settling  an  estate  to  the  husband  for  life, 
after  his  death  to  his  intended  wife  for  her  life,  and  after  her  death  to  the 
use  of  the  heir  male  of  the  husband  to  be  begotten  on  the  body  of  the  wife, 
afterwards,  and  before  marriage,  by  a  settlement  declared  to  be  in  part  per- 
formance of  the  said  articles,  the  lands  were  settled  upon  the  husband  for 
life,  then  to  the  wife  for  life,  and  after  her  death  to  the  use  of  the  heirs  male 
of  the  husband  begotten  on  the  body  of  the  wife.  Afterwards  the  marriage 
took  effect,  and  the  husband  suffered  a  common  recovery,  and  mortgaged 
the  land  in  fee;  which  mortgage  was  afterwards  assigned  to  another  mort- 
gagee.    After  the  father's  death,  his  eldest  son  brought  his  bill  for  an  ac- 


236  USES  AND  TRUSTS. 

(II)  What  Estate  Trustee  shall  convey,  and  to  whom. 

count  of  the  rents  and  profits,  and  for  possession,  and  to  have  the  full  be- 
nefit of  the  marriage  articles  ;  insisting  that  his  father  was  intended  to  be 
tenant  for  life  only,  with  remainder  to  his  first  and  other  son  and  sons  suc- 
cessively in  tail ;  that  he  was  a  purchaser  under  those  articles,  and  they 
ought  to  be  considered  as  if  they  had  been  strictly  carried  into  execution. 
The  mortgagee  denied  notice  of  the  articles,  and  insisted  on  his  being  a 
purchaser  for  valuable  consideration.  Lord  Hardwicke  said  it  was  cer- 
tainly true,  from  the  general  principles  of  the  court,  that  if  articles  on  mar- 
riage are  to  settle  an  estate  to  A  for  life,  remainder  to  his  wife  for  life,  re- 
mainder to  the  heirs  male  of  the  body  of  A,  it  is  taken  in  that  court  to  be  in 
strict  settlement,  and  an  estate  for  life  only  in  the  father  and  mother ;  and  if 
the  settlement  be  made  after  marriage,  it  shall  be  rectified  by  the  articles 
before  ; — that  the  case  of  West  and  Errissey  was  both  upon  articles  and  a 
settlement  before  marriage  ;  and  was  the  first  case  where  the  court  altered 
a  settlement,  and  made  it  conformable  to  articles,  and  relieved  on  the  head 
of  mistake,  the  settlement  referring  expressly  to  the  articles.  But  that  was 
between  the  parties  to  the  articles  and  settlement,  and  their  representatives, 
and  mere  volunteers  ;  and  had  not  been  carried  into  execution  against  a 
purchaser ; — that  it  was  true,  the  court  had  given  relief  against  persons 
who  claimed  under  the  settlement  and  their  representatives;  but  no  case 
had  gone  so  far  as  to  relieve  against  purchasers.  He  also  observed,  that 
there  was  no  case,  but  where  there  are  articles  as  well  as  a  settlement,  in 
which  the  court  will  construe  words  which  make  a  legal  estate-tail,  to  be 
carried  into  strict  settlement.  And  upon  the  whole,  Lord  Hardwicke, 
after  delivering  his  opinion  that  there  was  not  sufficient  proof  of  notice 
of  the  articles  in  the  assignee  of  the  mortgagee,  dismissed  the  bill  so  far 
as  it  prayed  to  be  relieved  against  the  mortgage ;  but  decreed  that  the 
plaintiff  might  be  at  liberty  to  redeem. 

Warwick  v.  Warwick  and  Kniveton,  3  Atk.  291  ;  Glanville  v.  Payne,  2  Atk.  39,  S. 
P.     ||  See  Senhouse  v.  Earl,  Ambl.  285  ;  and  see  9  Ves.  583 ;  per  the  Master  of  the 

Rolls.  || 

And  the  court  have  refused  to  rectify  a  settlement  according  to  articles, 
for  want  of  the  production  of  the  articles  themselves.  The  articles  were 
previous  to  marriage,  for  settling,  by  the  wife's  father,  certain  estates  to  the 
use  of  the  husband  and  wife  for  their  lives,  and  the  life  of  the  survivor,  and 
after  the  death  of  the  survivor,  to  the  use  of  the  heirs  of  the  body  of  the 
husband  on  the  wife,  remainder  over.  A  settlement  was  made  after 
marriage  reciting  the  articles,  and  said  to  be  made  in  consideration  of  the 
marriage,  and  pursuance  and  performance  of  the  articles.  Upon  a  bill 
by  a  son  of  the  marriage,  to  have  the  articles  carried  into  execution,  Lord 
Hardwicke  dismissed  it,  for  want  of  the  articles  being  produced  ;  by 
which  alone,  he  said,  he  could  alter  the  settlement.  It  was  impossible, 
he  said,  for  him  to  determine  otherwise,  unless  the  whole  of  the  instru- 
ment was  before  him  ;  for  the  true  construction  depended  on  words  ;  and 
other  parts  of  the  deed  might  be  material  to  find  out  the  true  meaning. 
He  could  not  see  reason  to  lay  it  down  as  a  rule,  that  in  all  cases  of 
articles,  the  husband  was  to  be  only  tenant  for  life. 

Ambl.  It.  515.     ||See  Hardy  v.  Reeves,  5  Ves.  42G  ;||  and  vide  Ambl.  R.  218. 

The  husband,  upon  his  marriage,  covenanted  to  levy  a  fine  of  freehold, 
and  surrender  copyhold  lands  to  the  use  of  himself  for  life,  remainder  to 
his  wife  for  life,  remainder  to  the  heirs  male  of  his  body  by  his  wife,  re- 


USES   AND    TRUSTS.  237 

(II)  What  Estate  Trustee  shall  convey,  and  to  whom. 

mainder  to  the  heirs  of  their  two  bodies.  He  afterwards  died,  without 
levying  the  fine  or  making  the  surrender,  leaving  a  son  and  a  daughter 
by  his  wife.  The  son  afterwards,  for  indemnifying  some  sureties  for  him, 
covenanted  to  levy  a  fine  of  the  freehold,  and  surrender  the  copyholds ; 
and  died,  having  surrendered  the  copyhold,  but  without  levying  a  fine 
of  the  freehold.  Upon  a  bill  by  his  sister  and  her  husband  to  have  the 
freehold  and  copyhold  lands  assured  to  her  according  to  the  intent  of  the 
settlement,  Lord  Harcourt  considered  the  deed  by  the  father  in  the  nature 
of  articles,  to  be  executed  in  a  stricter  manner  than  in  the  words  of  the 
deed,  and  that  a  remainder  might  be  limited  to  the  daughters ;  so  that  a 
fine  by  the  sons  could  not  have  barred  it.  But  upon  a  rehearing  before 
Lord  Cowper,  he  held  that  the  settlement,  by  the  deed  to  lead  the  uses 
of  the  fine,  was  not  to  be  considered  as  articles,  but  a  defective  settlement, 
and  the  uses  not  to  be  altered  or  varied :  but  that  a  court  of  equity  would 
assist  it  so  far,  as  to  consider  it  as  if  a  fine  had  been  levied  (by  the  hus- 
band,) and  then  the  plaintiff  would  not  have  been  barred  without  a  fine 
(by  her  father,)  and  she  was  to  be  considered  as  heir  of  the  body  of  her 
father.  And  that  the  limitation  in  the  deed  to  the  heirs  of  the  bodies, 
could  be  inserted  for  no  other  end  or  purpose,  but  to  carry  the  estate  to 
the  daughters  of  the  marriage  ;  it  being  before  limited  to  the  heirs  male  ; 
and  therefore  he  confirmed  the  decree  as  to  the  freehold.  But,  as  to  the 
copyhold,  there  appearing  no  particular  custom  in  the  manor  for  suffering 
a  recovery,  he  held  the  surrender  (by  the  son)  would  have  barred  the 
entail,  in  case  the  copyhold  had  been  well  settled ;  and  therefore  varied 
the  decree,  and  dismissed  the  bill  as  to  that. 
White  v.  Thornburgh,  2  Yern.  702.] 

W  B  devised  8007.  to  her  daughter  M  to  be  laid  out  by  her  executrix 
in  lands,  and  settled  to  the  only  use  of  her  daughter  M  and  her  children  ; 
and  if  she  died  without  issue,  the  lands  to  be  equally  divided  between  her 
brothers  and  sisters  then  living :  the  plaintiff  married  M  the  legatee,  and 
had  issue  by  her,  but  she  and  her  child  being  both  dead,  and  the  money 
not  laid  out  in  land,  the  bill  was,  that  the  plaintiff  might  either  have  the 
money  laid  out  in  lands,  and  settled  on  him  for  life,  as  being  tenant  by 
the  curtesy,  or,  in  lieu  of  the  profits  of  the  lands,  might  have  the  interest 
of  the  money  during  his  life.  It  was  held  by  the  court,  that  if  it  had 
been  an  immediate  devise  of  land,  M  the  daughter  would  have  been  by 
the  words  in  the  will  tenant  in  tail,  and  consequently  the  husband  would 
have  been  tenant  by  the  curtesy ;  and  in  case  of  a  voluntary  devise,  the 
court  must  take  it  as  they  found  it ;  although  upon  the  like  words  in  mar- 
riage articles  it  might  be  otherwise,  where  it  appeared  the  estate  was  in- 
tended to  be  preserved  for  the  benefit  of  the  issue,  and  therefore  decreed 
the  money  to  be  considered  as  lands,  and  the  plaintiff  to  have  the  inte- 
rest or  proceed  thereof  for  his  life,  as  tenant  by  the  curtesy. 

2  Yern.  536,  Sweetapple  v.  Bindon.     ||  See  Cunningham  v.  Mood}',  1  Yes.  17G.|| 

[So,  upon  a  devise  for  the  settling  of  lands  on  A  for  life,  and  after  his 
decease  to  the  heirs  male  of  his  body,  and  the  heirs  male  of  the  body  of 
every  such  heir  male,  severally  and  successively  as  they  should  be  in  pri- 
ority of  birth  and  seniority  of  age,  remainder  to  B.  In  arguing  the 
question,  Whether  A  was  tenant  for  life  only,  or  in  tail,  the  common  case 
of  marriage  articles  was  cited,  where,  though  they  were  so  worded  as  to 
give  the  husband  an  estate-tail,  yet  the  court  had  decreed  a  settlement  on 


238  USES   AND   TRUSTS. 

(II)  What  Estate  Trustee  shall  convey,  and  to  -whom. 

the  husband  for  life  only,  and  then  upon  the  first  and  other  son  and  sons, 
&c.  Upon  which  part  of  the  argument  Lord  Keeper  observed,  that 
■where  settlements  were  agreed  to  be  made  upon  valuable  consideration, 
the  court  would  aid  in  artificial  words,  and  make  an  artificial  settlement : 
but  he  never  knew  it  done  for  a  bare  volunteer. 

Lcgat  v.  Sewell,  1  Eq.  Abr.  395.  ||  See  Blackburn  v.  Stables,  2  Ves.  &  B.  3G7 ; 
Jervoise  v.  Duke  of  Northumberland,  1  Jac.  &  Walk.  559.  The  late  Mr.  Fearne 
thought  that  a  power  of  selling,  not  expressly  authorized  by  marriage  articles,  might 
be  introduced  into  a  settlement  made  in  pursuance  of  them,  and  would  be  supported 
in  equity;  but  it  has  been  decided  in  a  late  case,  that  the  introduction  of  a  power 
of  selling  in  a  settlement  was  not  authorized  where  the  will  was  silent  as  to  the  power. 
Wheate  v.  Hall,  17  Ves.  80  ;  Brewster  v.  Angel,  1  Jac.  &  Walk.  625.  See  Fearne's 
Post.  Works,  309,  and  2  Ves.  and  B.  311.  || 

Lands  were  devised  to  trustees  and  their  heirs  for  payment  of  debts 
and  legacies,  and  afterwards  to  settle  what  should  remain  unsold,  one 
moiety  to  the  testatrix's  son  H,  and  the  heirs  of  his  body  by  a  second 
wife,  with  remainder  over ;  and  the  other  moiety  to  the  testatrix's  son  F, 
and  the  heirs  of  his  body,  with  remainders  over ;  taking  special  care  in 
such  settlement,  that  it  should  never  be  in  the  power  of  either  of  the  sons 
to  dock  the  entail  of  either  of  their  moieties.  Upon  a  question,  whether 
the  sons  were  entitled  to  have  estates-tail  conveyed  to  them,  or  only  es- 
tates for  life  ?  the  court  held,  that  the  sons  must  be  made  only  tenants 
for  life,  and  should  not  have  estates-tail  conveyed  to  them  :  but  their  estates 
for  life  should  be  without  impeachment  of  waste.  Because  in  that  case 
an  estate  was  not  executed,  but  only  executory  ;  and  therefore  the  intent 
and  meaning  of  the  testatrix  was  to  be  pursued.  She  had  declared  her 
mind  to  be,  that  her  sons  should  not  have  it  in  their  power  to  bar  their 
children,  which  they  would  have,  if  an  estate-tail  were  to  be  conveyed  to 
them.  And  the  court  took  it  to  be  as  strong  in  the  case  of  an  executory 
devise  for  the  benefit  of  the  issue,  as  if  the  like  provision  had  been  con- 
tained in  marriage-articles ;  but  had  she  by  her  will  devised  to  her  sons 
an  estate-tail,  the  law  must  have  taken  place  ;  and  they  might  have  barred 
their  issue,  notwithstanding  any  subsequent  clause  or  declaration  in  the 
will,  that  they  should  not  have  power  to  dock  the  entail. 

Leonard  v.  Earl  of  Susses,  2  Vern.  526. 

Again,  A  devised  a  sum  of  money  to  trustees  in  trust,  to  be  laid  out 
in  lands,  and  to  be  settled  on  Jj  for  life  without  impeachment  of  waste,  re- 
mainder to  trustees  and  their  heirs  during  the  life  of  B,  to  support  contin- 
gent remainders,  remainder  to  the  heirs  of  the  body  of  B,  remainders  over, 
with  a  power  to  B  to  make  a  jointure.  The  universality  of  the  rule  re- 
specting the  union  of  the  limitation  to  the  ancestor  for  life,  with  that  to 
the  heirs  of  his  body,  &c,  was  urged  in  support  of  B's  being  entitled  to 
an  estate-tail  in  the  lands  to  be  purchased.  To  which  it  was  answered, 
that  the  rule  in  construction  of  wills  was,  that  the  intention  of  the  party 
ought  to  take  place,  however  improperly  expressed.  That  it  would  be  a 
downright  violation  of  the  testator's  intention,  to  construe  the  estate  de- 
vised to  B  to  be  an  estate-tail.  For  1st,  the  estate  was  devised  to  B  for 
his  life  expressly;  2dly,  it  was  to  B  without  impeachment  of  waste,  which 
would  be  vain  words,  if  B  were  to  have  more  than  an  estate  for  life  ;  3dly, 
the  estate  was  devised  to  trustees,  during  the  life  of  B,  to  preserve  contin- 
gent remainders,  so  that  the  testator  expressed  his  intention  that  the  re- 
mainders limited  to  the  issue  of  B  should  be  contingent  remainders  ;  and 

S 


USES  AND    TRUSTS.  239 

(II)  What  Estate  Trustee  shall  convey,  ami  to  whom. 

■what  could  be  more  contradictory  to  this  express  and  plain  intent,  than  to 
say  those  remainders  should  not  be  contingent,  but  give  a  vested  estate- 
tail  to  B.  As  to  the  notion  that  the  conveyance  directed  by  a  will  should 
be  in  the  words  made  use  of  in  the  will,  it  was  impossible  that  rule  could 
universally  hold ;  for  suppose  the  direction  of  the  will  was,  that  the  trus- 
tee should  convey  the  lands  to  A  for  life,  remainder  to  V)  for  ever  ;  this, 
in  a  deed,  would  not  convey  a  fee,  as  it  would  in  a  will ;  and  therefore, 
there  was  no  necessity  that  the  words  in  the  conveyance  should  pursue 
those  in  the  will.  So,  if  the  words  of  the  will  had  directed  the  estate  to 
be  conveyed  to  A  for  life,  remainder  to  the  issue  of  his  body,  (he  having 
none  at  that  time  born.)  this  would  be  an  estate-tail  in  a  will,  but  in  a 
deed  it  would  not  be  so.  Again,  if  the  words  in  a  will  were  that  the  con- 
veyance should  be  to  A  and  his  heirs  male,  this  would  be  an  estate-tail ; 
but  put  such  words  into  a  deed,  and  there,  for  want  of  saying  of  tvhose 
body  the  heir  must  be,  they  would  give  a  fee  simple ;  to  which  the  court 
agreed.  And  the  Lord  Chancellor  King  declared  the  court  had  a  power 
over  the  money  directed  to  be  invested  in  land :  that  the  diversity  was 
between  the  will's  passing  a  legal  estate  and  leaving  the  estate  executory, 
so  that  the  party  must  come  into  the  Court  of  Chancery,  in  order  to  have 
the  benefit  of  the  will :  that  in  the  latter  case  the  intention  should  take 
place,  and  not  the  strict  rules  of  law  :  and  he  decreed  that  B  should  have 
but  an  estate  for  life  on  the  lands  to  be  purchased. 

2  P.  Wms.  471,  Papillon  v.  Voice.    Vide  Earl  v.  Stamford  v.  Sir  John  Hobart,  infra. 

In  another  case,  of  a  devise  to  trustees  and  their  heirs,  in  trust  till  the 
marriage  or  death  of  the  testator's  grand-daughter,  to  receive  the  rents 
and  profits,  and  pay  her  an  annuity  for  her  maintenance;  and  as  to  the 
residue  to  pay  his  debts  and  legacies,  and  after  payment  thereof,  in  trust 
for  his  grand-daughter  ;  and  if  she  married  a  protestant,  after  her  age, 
or  with  consent,  &c,  then  to  convey  the  estate  after  such  marriage  to  the 
use  of  her  for  life,  without  impeachment  of  ivaste,  remainder  to  her  hus- 
band for  life,  remainder  to  the  issue  of  her  body,  with  several  remainders 
over.  A  question  arose,  whether  under  the  will  the  testator's  grand- 
daughter (Lady  Glenorchy)  was  tenant  for  life  or  in  tail  ?  which  depend- 
ed on  two  points :  1st,  "Whether  the  words  of  the  will,  in  an  immediate 
devise  of  a  legal  estate,  would  have  carried  an  estate-tail  ?  2dly,  If  so, 
whether  the  court  would  make  any  difference  between  a  legal  title  and  a 
trust  estate  executory  ? 

L'l  Glenorchy  v.  Bosville,  Ca.  temp.  Talb.  3,  19. 

Lord  Talbot  said,  he  should  upon  the  first  question  have  made  no  diffi- 
culty of  determining  it  an  estate-tail,  had  it  been  the  case  of  an  immediate 
devise.  lie  thought,  in  cases  of  trusts  executed,  or  immediate  devise's, 
the  construction  of  the  courts  of  law  and  equity  ought  to  be  the  same,  for 
there  the  testator  did  not  suppose  any  other  conveyance  would  be  made. 
But  in  executory  trusts  he  left  something  to  be  done  ;  the  trusts  to  be  ex- 
ecuted in  a  more  careful  and  more  accurate  manner.  That  in  the  case 
of  Legat  and  Sewell,  the  words,  "if  in  a  settlement,"  would  have  made 
an  estate-tail;  and  in  that  of  Bailie  v.  Coleman,  the  execution  was  to  be 
of  the  same  estate  he  had  in  trust ;  which,  in  construction  of  law,  was  an 
estate-tail.  That  the  case  of  Papillon  and  Voice  seemed  a  strong  autho- 
rity for  executing  the  intent  in  executory  trusts  as  well  as  in  articles ; 


240  USES   AND  TRUSTS. 

(II)  What  Estate  Trustee  shall  convey,  and  to  whom. 

and  he  accordingly  decreed  the  Lady  Glenorchy  but  an  estate  for  life, 
with  remainder  to  her  first  and  other  sons,  &c. 

Sir  John  Maynard,  after  devising  his  estates  in  remainder  after  the  de- 
cease of  his  wife  (afterwards  Countess  of  Suffolk)  to  trustee  and  their  heirs, 
he  directed  them,  after  his  wife's  decease,  to  convey  certain  parts  thereof  to 
the  use  of,  or  in  trust  for,  Sir  H.  Hobart  and  Elizabeth  his  wife,  for  their 
lives,  and  the  life  of  the  longer  liver  of  them  ;  the  remainder  to  the  first  son 
of  the  said  Elizabeth  for  ninety-nine  years,  if  he  should  so  long  live  ;  the 
remainder  to  the  heirs  male  of  the  body  of  such  first  son  :  the  remainder 
to  all  and  every  the  sons  of  the  said  Elizabeth  for  ninety-nine  years,  if 
every  such  son  respectively  should  so  long  live  ;  the  remainder  to  the  heirs 
male  of  every  of  them,  to  take,  not  jointly,  but  successively,  one  after  the 
other,  according  to  the  births  of  each  of  them  ;  each  son  to  take  the  term 
of  ninety-nine  years,  with  immediate  remainder  to  his  said  iicirs  male  ;  the 
remainder  thereof  to  Mary  Maynard  (afterwards  Countess  of  Stamford) 
for  her  life  ;  the  remainder  thereof  to  all  and  every  her  sons  for  such  like 
term  of  ninety-nine  years,  and  with  remainder  to  the  heirs  male  of  the  body 
of  every  such  son  immediately  after  each  term.  The  testator  left  the  said 
Elizabeth  Hobart  and  Mary  Maynard  his  grand-daughters  and  co-heirs  at 
law,  who  neither  of  them  had  anv  issue  male  at  the  time  of  his  decease. 
Afterwards,  on  some  disputes  between  Sir  H.  Hobart  and  his  lady,  Lord 
Stamford  and  his  lady,  and  the  Countess  of  Suffolk,  an  act  of  parliament 
was  obtained,  whereby  it  was  enacted  that  the  real  estate,  by  the  said  Sir 
John  Maynard's  will  given  or  appointed,  should  go  unto,  and  be  held  and 
enjoyed  by  such  person  and  persons,  to  and  for  such  estates  and  interests, 
and  under  and  subject  to  such  charges,  limitations  and  appointments,  and 
in  such  manner  and  form  as  was  in  the  said  will  expressed.  And  the  said 
trustees  were  thereby  authorized  and  empowered  to  convey  the  said  ma- 
nors and  lands  immediately,  unto  such  person  and  persons,  and  for  such 
estate  and  estates,  as  the  same  were  in  and  by  the  said  will  limited  and 
appointed  to  be  conveyed,  as  if  the  said  Countess  of  Suffolk  were  dead. 

Earl  of  Stamford  v.  Sir  John  Hobart,  1  Bro.  Pari.  Ca.  288 ;  ||3  Bro.  P.  C.  31,  ed. 
1803.|| 

After  the  decease  of  Sir  H.  Hobart  and  his  wife,  upon  a  bill  filed  by 
Sir  John  Hobart,  their  only  son,  the  trustees  were  directed  to  convey  the 
lands  according  to  his  ivill  and  the  words  of  the  act  of  parliament.  And 
a  draft  of  conveyance  being  accordingly  settled  by  the  master  to  trustees, 
habendum  to  them  and  their  heirs,  to  the  several  uses,  intents,  and  pur- 
poses in  the  said  will  and  act  of  parliament  limited,  expressed,  and  de- 
clared, and  to  and  for  no  other  use,  intent,  or  purpose  whatsoever  ;  the 
plaintiff  excepted  to  it,  for  that  the  premises  ought,  at  least,  to  have  been 
limited  to  the  use  of  the  said  trustees  and  their  heirs ;  and  only  in  trust 
for  such  person  and  persons,  and  such  estate  and  estates,  as  were  in  and 
by  the  said  will  and  act  of  parliament  limited ;  whereby  the  legal  estate 
might  be  vested  in  the  said  trustees,  for  the  better  preservation  of  the 
contingent  limitations,  which  otherwise,  as  the  draft  was  prepared,  were 
liable  to  be  destroyed,  and  the  testator's  intention  plainly  defeated. 

Upon  the  hearing  of  this  exception,  Lord  Chancellor  Cowper  declared, 
"that  in  matters  executory,  as  in  cases  of  articles,  or  a  will  directing  a  con- 
veyance, where  the  words  of  the  articles  or  will  were  improper,  or  informal, 
that  court  would  not  direct  a  conveyance  according  to  such  improper  or 
informal  expressions  in  the  articles  or  w ill;  but  would  order  the  conveyance 


USES  AND  TRUSTS.  241 

(II)  What  Estate  Trustee  shall  convey,  and  to  whom. 

or  settlement  to  be  made  in  a  proper  and  legal  manner,  so  as  might  best 
answer  the  intent  of  the  parties;  and  in  that  case  his  lordship  conceived 
the  true  intent  of  the  will  to  be,  that  the  estates  should  be  secured,  as  far  as 
the  rules  of  law  would  admit,  to  the  issue  male  of  the  respective  devises, 
and  that  it  was  designed  to  be  as  strict  a  settlement  as  possible  by  law." 
His  lordship  therefore  decreed,  that  in  the  said  conveyance,  where  any  part 
of  the  estate  was  limited  in  use  to  the  plaintiff  for  ninety-nine  years,  if  he 
should  so  long  live,  there  should  be  a  limitation  over  to  trustees  and  their 
heirs  during  his  life,  to  preserve  the  contingent  uses  in  remainder ;  and 
then  to  the  first  and  other  sons  of  the  plaintiff  in  tail-male  successively. 

Upon  an  appeal  to  the  Lords  from  this  last  decree,  it  was  contended, 
among  other  things,  that  the  act  of  parliament,  which  was  so  very  express 
in  confirming  the  estates  appointed  by  the  will,  could  never  intend  that  a 
court  of  equity  should  have  power  to  direct  a,  conveyance  to  other  uses  than 
what  were  mentioned  in  the  mil;  but  the  decree  complained  of  did  so,  and 
was  therefore  repugnant  both  to  the  will  and  act  of  parliament,  as  well  as 
to  the  former  decree.  To  this  it  was  answered,  that  in  cases  of  executor// 
articles,  for  the  settling  of  estates,  in  prospect  of  future  conveyances  to  be 
afterwards  made,  it  was  usual  for  courts  of  equity  to  help  informalities  and 
supply  defects,  especially  when  the  things  supplied  were  necessaiy  to  sup- 
port the  main  intent  of  the  parties,  and  to  carry  such  articles  into  execution, 
according  to  that  intent,  so  far  as  it  might  agree  with  law,  though  not 
strictly  according  to  the  words  and  penning  of  the  articles  ;  and  a  fortiori 
would  courts  of  equity  do  so  in  the  case  of  a  will,  where  the  same  was 
only  executory  by  a  con  veyance  to  be  made.  That  the  act  of  parliament  made 
no  alteration  in  the  ivill,  in  the  point  in  question ;  it  only  hastened  the 
time  for  the  trustees  to  convey,  even  in  the  lifetime  of  the  Countess  of 
Suffolk,  and  in  some  other  particulars  not  relative  to  the  question.  But 
in  all  other  respects  the  act  confirmed  the  will,  and  being  strictly  relative 
to  it,  the  intent  of  the  will  ought  to  be  the  rule  for  the  conveyance.  The 
decree  was  accordingly  affirmed  by  the  Lords.] 

||  Both  in  wills  and  marriage  settlements  cross  remainders  may  be  raised 
by  implication.  In  the  case  of  the  Duke  of  Newcastle  v.  Earl  of  Lincoln,(a) 
a  conveyance  was  made  before  and  in  consideration  of  marriage,  of  real 
estates,  in  strict  settlement,  with  a  covenant  to  assign  leasehold  estates  to 
trustees,  in  trust  for  such  person  or  persons,  and  for  such  or  the  like  ends, 
intents,  and  purposes  as  were  therein  before  mentioned,  of  and  concerning 
the  said  estates,  &c,  as  far  as  the  law  would  in  that  case  permit.  Lord 
Rosslyn  thought  that  the  settlements  should  be  so  framed  that  no  person 
being  tenant  in  tail  by  purchase  should  become  entitled  to  a  vested  interest 
in  the  leasehold  estate  till  he  attained  twenty-one,  or,  dying  under  that 
age,  unless  he  left  issue  inheritable  to  the  entail. 

Green  v.  Stephens,  12  Ves.  419  ;  17  Yes.  64 ;  Marryatt  v.  Townley,  1  Ves.  102, 
104;  Twisden  v.  Lock,  Ambl.  G63 ;  Richmond  v.  Cadogan,  cited  17  Acs.  G7 ;  West 
v.  Errissev,  2  P.  Wms.  349  ;  Home  v.  Barton,  Cooper,  257.  (a)  3  Yes.  387  ;  12  Yes. 
218  ;  Gowerv.  Grosvenor,  Barn.  54;  2  Yes.  &  B.  63.  || 

[In  a  case  where  one  by  deed  conveyed  his  freehold  land  to  trustees  and 
their  heirs,  and  his  leasehold  to  trustees  and  their  executors,  upon  trust  to 
apply  the  rents  and  the  benefit  of  the  redemption  to  W  for  life,  and  after 
her  death  to  the  heirs  of  the  body  of  the  said  W,  and  of  G  and  of  M,  their 
heirs,  executors,  and  assigns,  during  the  continuance  of  the  estate  in  the 
premises  ;  upon  a  question,  "Whether  W  took  for  life,  or  in  tail  ?     Lord 

Vol.  X.— 31  X 


242  USES  AND  TRUSTS. 

(H)  What  Estate  Trustee  shall  convey,  and  to  whom. 

ft 

Talbot  held,  that  she  took  an  estate  for  life,  and  that  the  heirs  took  by 

purchase.     In  which  case  we  may  observe,  the  limitation  to  the  heirs  of 

the  body  of  W  was  blended  with  that  to  the  heirs  of  the  bodies  of  several 

others,  who  could  take  no  otherwise  than  by  purchase ;  and  there  were 

words  of  limitation  not  only  to  the  heirs,  but  to  the  assigns  of  all  the 

said  heirs  of  the  bodies  alike. 

Allgood  v.  Withers,  in  Chanc.  in  1735,  cited  2  Burr.  1107;  1  Ves.  150  ;  2  Atk. 
5S2 ;  2  Ves.  648;  and  vide  Ashton  v.  Ashton,  cited  1  Ves.  149  ;  2  Atk.  582. 

A  devised  lands  to  five  trustees,  their  heirs  and  assigns  in  trust,  by  rent 
and  profits,  sale  or  mortgage,  to  pay  his  debts,  &c,  and  after  payment 
thereof,  he  devised  the  same  estates  to  three  of  the  same  trustees,  their 
executors,  &c,  for  500  years,  upon  trust  to  pay  his  legacies,  and  an  annuity 
of  200/.  per  ami.  to  his  sister  for  life ;  and  after  the  determination  of  the 
said  estate  for  years,  he  devised  the  same  premises  to  all  the  said  trustees 
and  their  heirs  in  trust,  as  to  a  moiety,  to  the  use  of  T  his  nephew  for  life, 
without  impeachment  of  waste  ;  and  after  the  determination  of  that  estate, 
to  the  trustees  and  their  heirs  during  the  life  of  T  to  support  contingent 
remainders,  and  after  his  decease  to  the  use  of  the  heirs  of  the  body  of  T 
lawfully  begotten,  and  for  want  of  such  issue,  then  to  the  use  of  his  nephew 
B  for  the  term  of  his  natural  life,  without  impeachment  of  waste  ;  and  after 
the  determination  of  that  estate,  to  the  saine  trustees  during  the  life  of  B  to 
preserve  contingent  remainders,  and  after  his  decease,  then  to  the  use  of  the 
heirs  of  the  bodg  of  B  lawfully  begotten,  with  like  remainders  to  other 
nephews.  The  first  devisee  T  died  without  issue ;  upon  whose  decease 
B,  the  next  in  remainder,  filed  his  bill  against  the  trustees  and  all  proper 
parties,  praying,  amongst  other  things,  to  be  let  into  possession  of  a  moiety 
of  the  estates  :  afterwards  B  dying  pending  the  suit,  his  widow  and  devisee 
brought  a  bill  of  revivor  and  supplemental  bill,  charging  that  B  in  his  life- 
time, by  bargain  and  sale  enrolled,  conveyed  his  moiety  of  the  estates  to 
two  persons  and  their  heirs,  to  make  them  tenants  of  the  freehold,  and  suf- 
fered a  recovery  thereof  (in  which  he  was  vouched)  to  the  use  of  himself 
in  fee ;  and  afterwards  devised  his  said  moiety  to  his  said  widow  in  fee, 
and  died  without  issue.  The  general  question  between  the  parties  was, 
Whether  an  estate-tail,  or  an  estate  for  life  only,  passed  by  the  will  of  A 
to  B  ?  It  was  insisted  for  the  plaintiff,  that  it  was  an  estate-tail ;  upon  the 
general  rule,  that  where  lands  are  limited  to  a  man  for  life,  with  a  limita- 
tion in  the  same  deed  or  gift  to  the  heirs  of  his  body,  that  this  makes  an 
•estate-tail,  and  that  a  devise  of  lands  in  the  same  way  passed  the  same 
■estate  :  that  the  limitation  was  either  a  legal  estate,  or  a  trust  vested  or  exe- 
cuted, and  not  executory.  On  the  other  hand  it  was  contended,  that  those 
rules  were  artificial,  not  founded  in  justice,  but  for  support  of  the  feudal 
tenures,  and  therefore  the  judges  ought  to  show  themselves  astuti  in  sup- 
porting exceptions  to  such  rules.  The  Master  of  the  Rolls,  however,  held 
it  to  be  a  trust,  and  not  a  legal  estate  ;  but  decreed  that  B  was  entitled  to 
an  estate-tail  in  the  moiety  so  devised  to  him  ;  as  it  was  the  case  of  an  im- 
mediate -devise,  and  not  a  devise  of  lands  to  be  settled.  Upon  an  appeal  to 
Lord  Ilardwicke  from  this  decree,  he  agreed  that  this  devise  was  only  a 
trust  in  equity ;  the  devise  being  to  trustees  and  their  heirs,  which  carried 
the  whole  fee  in  point  of  law,  and  the  devise  to  sell  being  sufficient  to 
carry  the  fee,  if  the  word  heirs  had  been  omitted  ;  and  therefore  the  Avhole 
fee  being  in  the  trustees,  no  legal  remainder  could  be  limited  to  B  ;  and  as 
to  its  being  considered  as  an  executory  devise  to  B,  (which,  it  seems,  had 


USES  AND  TRUSTS.  243 

(II)  What  Estate  Trustee  shall  convey,  and  to  whom. 

been  contended  at  the  bar,)  it  was  too  remote  to  be  good  in  that  view  , 
being  after  all  debts  indefinitely  paid,  which,  in  point  of  time,  might  exceed 
a  life  or  lives  in  being,  or  any  other  time  allowed  by  law;  and  besides,  in 
that  case  the  recovery  by  B  oeing  before  the  debts  were  paid,  and  conse- 
quently whilst  the  legal  fee  remained  in  the  trustees,  B  could  make  no 
good  tenant  to  the  prcecipe;  and  that  would  prevent  it  from  passing  by 
B's  will :  for  whatever  made  that  recovery  void  equally  defeated  the  plain- 
tiff's title  :  which  made  it  necessary  for  the  plaintiffs  to  admit  that  all  the 
devises  subsequent  to  that  to  the  trustees  were  trusts  in  equity.  That  the 
main  question,  whether  it  was  an  equitable  estate-tail,  or  for  life  only,  de- 
pended on  the  construction  of  the  words  heirs  of  the  body,  whether  they 
should  be  taken  as  words  of  limitation  or  of  purchase.  That  the  intent  was 
clear  that  they  should  be  taken  as  words  of  purchase,  from  the  clause  with- 
out impeachment  of  waste,  and  the  limitation  to  trustees  to  support  contin- 
gent remainders.  That  there  were  several  cases  even  at  law,  where  they 
had  been  taken  as  words  of  purchase,  as  Archer's  case;  that  the  wordsof 
limitation  added  there,  and  in  all  such  cases,  were  only  demonstration 
of  the  intent  of  the  testator  in  using  the  first  words.  That  the  case  of  Col- 
son  and  Colson,  which  was  objected  as  an  authority,  that  the  interposition 
of  trustees  to  support  contingent  remainders  is  not  sufficient  to  turn  these 
subsequent  limitations  to  the  heirs  of  the  body  into  words  of  purchase, 
differed  from  the  principal  case ;  here  being  (in  the  principal  case)  a  clause 
without  impeachment  of  waste ;  although  that  might  be  thought  of  little 
weight ;  but  the  great  difference  was,  that  this  was  a  devise  of  a  trust  in 
equity,  that  of  a  mere  legal  estate,  the  ivords  of  which  must  be  taken  as 
they  stood  according  to  the  strict  legal  determination.  That  here  all  the 
limitations  were  the  direction  of  a  trust,  which  the  court  was  bound  to 
carry  into  execution  according  to  the  intent  of  the  testator. 

1  Ves.  142 ;  2  Atk.  24G,  570,  577,  Bagshaw  v.  Spencer.    ■ 

That  as  to  the  difference  between  trusts  executed  and  executory,  the  dis- 
tinction had  never  been  established  by  any  direct  resolution.  That  all 
trusts  in  notion  of  law  were  executory,  and  to  be  carried  into  execution 
by  the  court  by  subpoena.  That  if  B  had  himself  come  to  have  a  conveyance 
decreed  him,  the  question  would  have  been,  whether  the  court  should  have 
inserted  trustees  to  support  contingent  remainders ;  if  they  had  not,  they 
would  have  departed  from  the  words  of  the  will ;  if  they  had,  the  remainder 
must  have  been  to  first,  &c,  son  and  sons  in  strict  settlement,  for  other- 
wise there  would  have  been  no  remainders  to  be  preserved  ;  and  therefore, 
if  the  court  must  at  all  events  depart  from  the  wrords  of  the  will,  such 
departure  must  rather  be  to  support  than  to  frustrate  the  plain  intent  of 
the  testator.  For  these  reasons  Lord  Hardwicke  reversed  so  much  of 
the  decree  at  the  Rolls  as  gave  B  an  estate-tail  under  the  will. 

Sed  vide  Wright  v.  Pearson,  Ambl.  358  ;  but  more  fully  Fearne's  C.  R.  187.  ||  1 
Eden,  It.  119  ;||  Austen  v.  Taylor,  Ambl.  37G;  Jones  v.  Morgan,  1  Bro.  Chan.  Ca. 
206.] 

||  In  a  recent  case,  there  was  a  devise  to  trustees  and  their  heirs  of  real 
estates  in  trust,  to  demise  or  let  all  the  testator's  freehold  estates  for  any 
term  they  should  think  proper,  and  to  pay  one-third  of  the  rents  to  the  tes- 
tator's wife  for  life,  and  the  remaining  two-thirds,  and  after  the  decease  of 
the  wife,  the  first  mentioned  one-third  part  to  the  testator's  daughter  for 
life,  for  her  separate  use,  independently  of  her  husband ;  and  after  the  death 
of  the  daughter,  the  testator  bequeathed  all  his  freehold  estates  to  her 


244  USES  AND  TRUSTS. 

(II)  What  Estate  Trustee  shall  convey,  and  to  whom. 

children,  equally  to  be  divided  among  them  at  their  respective  ages  of 
twenty-one  years.     This  was  held  to  be  a  devise  of  the  legal  fee  to  the 
trustees,  and  not  a  mere  power  of  leasing,  nor  a  determinable  fee. 
Doe  dem.  Tomkins  v.  Willan,  2  Barn.  &  Aid.  84. 

In  the  late  case,  however  of  Warter  v.  Warter,  Thomas  Meredith,  by 
his  will,  dated  8th  of  September,  1801,  (after  directing  payment  of  his  debts 
and  funeral  expenses,)  devised  his  capital  and  other  messuages,  tenements, 
lands,  and  hereditaments,  with  their  respective  appurtenances,  charged  with 
two  annuities,  to  trustees,  their  heirs  and  assigns,  until  his  nephew,  John 
Warter,  the  son  of  his  sister  Margaretta  Warter,  should  attain  the  age  of 
twenty-one  years ;  and  if  he  should  die  in  the  mean  time,  until  Henry 
Warter,  the  second  son  of  the  said  Margaretta  Warter,  should  arrive  at 
that  age  ;  and  if  the  said  Henry  Warter  should  die  in  the  meantime,  until 
the  daughter  of  the  said  Margaretta  should  arrive  at  that  age,  upon  trust, 
among  other  things,  to  raise  out  of  the  rents  and  profits  of  the  premises,  or 
by  sale  or  mortgage  thereof,  or  of  a  competent  part  thereof,  the  full  sum  of 
2000?.,  together  with  all  costs  and  charges  attending  the  raising  of  the 
same,  and  to  pay  the  same  to  the  said  Henry  Warter,  the  younger  son  of 
his  sister,  M.  Warter,  as  soon  as  he  attained  the  age  of  twenty-one  years ; 
and  if  his  sister  should  happen  to  have  more  than  one  younger  child,  to 
raise  out  of  the  rents,  issues,  and  profits  of  the  premises  the  full  sum  of 
8000Z.,  and  pay  the  same  to  and  amongst  such  younger  children,  share  and 
share  alike,  as  soon  as  they  should  severally  attain  their  ages  of  twenty-one 
years  ;  and  upon  further  trust,  to  pay  and  apply  a  proper  sum  of  money, 
arising  from  the  rents  and  profits  of  the  premises,  for  the  maintenance  and 
education  of  his  nephew,  John  Warter,  till  he  should  arrive  at  the  age  of 
twenty-one  years ;  and  when  John  Warter  should  attain  that  age,  to  pay 
him  the  residue  of  the  rents,  issues,  and  profits  of  the  premises,  if  any  should 
remain  after  performance  of  the  before-mentioned  trusts;  and  if  John 
Warter  should  happen  to  die  before  he  attained  the  age  of  twenty-one  years, 
then  to  pay  and  apply  a  sufficient  sum  of  the  money  arising  from  the  rents 
and  profits  of  the  premises  for  the  maintenance  and  education  of  his  nephew, 
Henry  Warter,  till  he  should  attain  the  age  of  twenty-one  years ;  and,  when 
Henry  Warter  should  arrive  at  that  age,  then  upon  trust,  to  pay  him  the 
rest  and  residue  of  the  rents,  issues,  and  profits  of  the  premises,  if  any  should 
remain  after  performance  of  the  before-mentioned  trusts ;  and  in  the  mean 
time  to  place  out  the  money  arising  from  the  rents  and  profits  of  the  pre- 
mises at  interest,  for  the  benefit  and  advantage  of  his  said  nephew ;  and 
when  and  as  soon  as  John  Warter  should  attain  the  age  of  twenty-one 
years;  or,  in  case  of  his  death,  when  and  as  soon  as  Henry  Warter  should 
arrive  at  that  age;  or,  in  case  of  his  death,  when  and  as  soon  as  the 
daughter  of  Margaretta  Warter  should  arrive  at  the  age  of  twenty-one 
years,  he  gave  and  devised  the  premises,  with  their  respective  appurten- 
ances, subject  as  aforesaid  to  the  said  trustees,  their  heirs  and  assigns,  to 
the  use  of  his  nephew,  John  Warter  and  his  assigns  for  life,  sans  waste, 
remainder  to  trustees  to  preserve  contingent  remainders;  and  after  the 
decease  of  John  Warter,  to  the  use  of  the  first,  second,  and  third,  and  all 
and  every  other  son  and  sons  of  the  body  of  John  Warter,  lawfully  issu- 
ing severally  and  successively  in  tail-male,  with  remainder  to  his  first 
and  every  other  daughter  successively  in  tail,  with  remainders  over. 

"Warter  v.  Warter,  2  Bro.  &  B.  349 ;  and  see  Sand,  on  Uses,  c.  2,  \  8,  (4th  edit.) 


USES  AND  TRUSTS.  245 

(H)  What  Estate  Trustee  shall  convey,  and  to  whom. 

John  Warter  died  under  the  age  of  twenty-one  years,  leaving  a  widow, 
Jane  Warter,  and  also  Margaretta  Elizabeth  Meredith  Warter,  his  only 
child  and  heir  at  law,  him  surviving. 

The  judges  of  the  Court  of  Common  Pleas  certified,  that,  upon  the 
death  of  John  Warter  under  the  age  of  twenty-one  years,  Margaretta 
Elizabeth  Meredith  Warter,  his  only  child,  became  and  is  now  entitled  to 
the  devised  estate  and  premises  as  tenant  in  tail-male  of  the  legal  estate. 

From  this  certificate  it  is  clear,  that  the  judges  did  not  consider  the  legal 
estate  in  fee  simple  to  have  been  vested  in  the  trustees,  although  there  was 
an  express  trust  to  sell  or  mortgage.  The  same  construction  seems  to  have 
been  adopted  in  Hawker  v.  Hawker.  It  is  possible,  that,  in  both  cases, 
the  judges  considered  the  trust  to  sell  or  mortgage  in  the  nature  of  a  power ; 
for,  if  a  purchaser  or  mortgagee  were  to  derive  title  from  the  estate  vested 
in  the  trustees  under  the  trust,  to  sell  or  mortgage  that  estate  must  neces- 
sarily have  been  an  absolute  fee-simple  ;  for,  if  the  legal  fee,  when  vested 
in  the  trustees,  was  in  its  nature  determinable,  the  purchaser  deriving 
title  under  them  must  take  an  estate  commensurate  to  that  which  the 
trustees  held,  and  his  estate  would  therefore  be  also  determinable. 

3  Barn.  &  Aid.  527.     See  7  Term  R.  342,  433,  and  Sand,  on  Uses,  2G0,  (4th  edit.)  H 

[One  devised  lands  to  trustees  and  their  heirs  for  payment  of  debts  and 
legacies,  and,  after  debts  and  legacies  paid,  willed  that  one-fourth  part 
should  be  and  remain  in  trust  for  E  for  life,  with  power  of  leasing ;  and 
after  her  decease,  in  trust  for  C  for  and  during  the  term  of  his  life,  with 
like  power  of  leasing,  and  after  his  decease  to  the  heirs  male  of  the  body 
of  C,  remainder  over.  Now  this  was  the  devise  of  a  trust;  and  Lord 
Cowper  conceived  that  it  differed  from  an  immediate  devise,  and  that  it  was 
rather  to  be  looked  upon  in  the  nature  of  an  executory  devise,  to  take  effect  ' 
after  debts  paid,  which  were  considerable ;  or  in  nature  of  marriage  articles : 
besides,  that  the  enabling  C  to  make  leases,  seemed  to  imply  very  strongly 
that  he  was  to  have  no  power  to  dispose  of  the  inheritance.  But  the  cause 
coming  on  before  Lord  Harcourt  upon  a  re-hearing,  he  said  the  case  of  a 
will  differed  from  the  several  cases  of  marriage  articles,  in  the  nature  of 
which'  the  issue  were  particularly  considered,  and  looked  upon  as  pur- 
chasers. That  in  case  of  a  ivill,  where  the  parties  claim  voluntarily,  the 
testator's  intent  must  be  presumed  to  be  consistent  with  the  rules  of  law : 
that  at  law  those  words  would  certainly  create  an  estate-tail ;  and  it  could 
not  be  inferred  (with  any  certainty)  from  the  power  of  leasing,  that  no 
estate-tail  was  intended ;  such  power  being  more  beneficial  than  that  given 
to  tenant  in  tail  by  the  statute ;  and  as  the  debts  were  admitted  by  the 
pleadings  to  be  all  paid,  the  same  construction  was  to  be  made  as  if  there 
had  been  originally  no  trust ;  and  so  decreed  A's  share  to  be  conveyed  to 
him  and  the  heirs  male  of  his  body,  remainder  over. 

Bale  v.  Coleman,  2  Vern.  670 ;  1  P.  Wms.  142.  ||  See  the  Master  of  the  Rolls'  argu- 
ment in  Blackburn  v.  Stables, 2  Ves.  &  Bea.  307, 370,  and  Jervoise  v.  Duke  of  Northum- 
berland, 1  Jae.  &  W.  559.(|  Peere  Williams  states  it  as  a  devise  to  four  persons  for 
po.yment  of  debts,  afterwards  to  the  use  of  them  and  their  heirs;  and  that  the  testate: 
by  codicil  devised  that  his  will  should  stand,  saving  that  one  of  the  said  devisees  should 
have  his  estate  for  life,  with  power  of  leasing,  remainder  to  the  heirs  male  of  his  body. 
But  considering  the  first  devise  for  payment  of  debts,  the  devisee's  beneficial  interest  in 
either  state  of  the  case  appears  to  have  been  in  the  nature  of  a  trust.     1  P.  Wms.  242. 

Where  there  was  a  devise  of  lands  to  a  trustee,  in  trust  to  pay  the  rents 
and  profits  to  S  for  her  separate  use  for  life,  as  if  she  were  sole  ;  and  after 
her  decease  to  pay  the  same  to  E  her  son  for  life,  and  afterwards  to  pay 

x2 


246  USES  AND  TRUSTS. 

(II)  What  Estate  Trustee  shall  convey,  and  to  whom. 

the  same  to  the  heirs  of  his  body,  and  for  want  of  such  issue,  to  pay  the 
same  to  all  and  every  other  son  or  sons  of  the  body  of  S  begotten,  &c.  r 
upon  the  question,  whether  E  was  entitled  to  the  lands  in  tail,  or  for  life 
only,  Lord  Hardwicke  proceeded  on  this  principle,  viz.,  that  in  limitations 
of  a  -trust,  either  of  a  real  or  personal  estate  to  be  determined  in  that  court, 
the  construction  ought  to  be  made  according  to  the  construction  of  limi- 
tations of  a  legal  estate,  unless  the  intent  of  the  testator  or  author  of  the 
trust  plainly  appears  to  the  contrary.  He  laid  it  down  as  a  rule  (he  said) 
that  he  was  not,  in  a  court  of  equity,  to  overrule  the  legal  construction 
of  the  limitation,  unless  the  intent  of  the  testator  or  author  of  the  trust 
appears  by  declaration  plain,  that  is,  by  plain  expression  or  necessary 
implication.  And  upon  this  ground  Lord  Hardwicke  decreed  a  convey- 
ance in  tail  to  B  of  the  real  estate  so  devised. 

Garth  v.  Baldwin,  2  Vesey,  646.] 

A  surrender  was  made  of  an  estate  of  the  nature  of  borough  English, 
to  the  use  of  trustees,  in  trust  after  payment  of  an  annuity  and  some  par- 
ticular debts,  to  surrender  the  same  to  the  use  of  the  heirs  of  the  body  of 
the  husband  and  wife.  The  husband  and  wife  had  two  sons ;  and  when 
the  annuity,  &c,  were  at  an  end,  they  each  of  them  claimed  the  sur- 
render in  their  favour ;  the  eldest  son  as  heir  of  the  body  by  the  com- 
mon law  of  England,  and  the  younger  as  heir  by  the  custom  of  borough 
English,  of  whjch  nature  this  estate  was.  But,  as  this  was  a  trust  merely 
executory,  the  court  directed  a  surrender  to  be  made  to  the  eldest  son, 
as  heir  general  by  the  common  law. 

Starkey  v.  Starkey,  in  Exch.  Trin.  19  G.  2,  MS.  Rep.;  [Roberts  v.  Dixwell,  1  Atk. 
610,  a  similar  decision  by  Lord  Hardwicke  on  an  estate  in  gavelkind.] 

||  Where  a  settlement  was  made  of  money  upon  trust,  to  be  transferred 
to  the  surviving  parent,  for  the  benefit  of  him  or  her  and  any  child  or  chil- 
dren of  the  marriage,  it  was  held,  on  the  construction  of  the  whole  settle- 
ment, that  the  surviving  parent  took  for  life,  with  remainder  to  the  children. 
Chambers  v.  Atkins,  1  Sim.  &  Stu.  382. 

Where  a  will  directed  a  settlement  to  be  made  of  real  estate  on  A  and 
his  first  and  other  sons  in  tail,  with  power  of  jointuring,  leasing,  sale,  and 
exchange,  and  all  other  powers,  &c,  usually  inserted  in  similar  settle- 
ments, it  was  held  that  these  last  words  did  not  authorize  the  insertion 
of  a  power  to  charge  with  portions. 
Higginson  v.  Barneby,  2  Sim.  &  Stu.  516.|| 

pWhen  a  property  is  given  absolutely,  with  a  recommendation  as  to 
its  disposal  in  favour  of  others,  in  such  terms  as  ought  to  be  construed 
imperatively,  and  the  objects  of  the  recommendation  are  certain ;  held  to 
create  a  trust  in  their  favour. 

Knight  v.  Knight,  3  Beav.  148. 

Where  a  father  bequeathed  a  legacy  to  his  daughter,  the  wife  of  B, 
recommending  the  daughter  and  husband  to  settle  it,  together  with  such 
sum  as  the  husband  should  choose,  for  the  benefit  of  the  wife  and  chil- 
dren ;  held,  to  constitute  a  trust  for  the  children. 

Ford  v.  Fowler,  3  Beav.  140. 

Property  held  in  trust  does  not  pass  to  the  representatives  of  the  trus- 
tee ;  and  as  long  as  it  can  be  traced  and  distinguished,  it  inures  to  the 
benefit  of  the  cestui  que  trust. 

Moses  v.  Murgatroyd,  1  Johns.  Ch.  R.  119,  473. 


USES   AND   TRUSTS.  247 

(I)  Trustee  where  favoured,  and  where  to  account. 

In  case  of  the  bankruptcy  or  insolvency  of  the  assignee,  the  trust 
estate  passes  to  his  assignee,  subject  to  the  trust. 

Dexter  v.  Stewart,  7  Johns.  Ch.  52. 

Equity  always  compels  the  trustee  to  surrender  the  legal  estate  to  the 
cestui  que  trust,  unless  the  receipt  of  the  profits  by  the  trustee  is  requisite 
to  effectuate  the  intention  of  the  creator  of  the  trust. 

Jasper  v.  Maxwell,  Dev.  Eq.  357. 

The  law  never  compels  a  trustee,  who  sells  under  his  trust,  to  enter  into 
any  covenants  in  his  deed,  except  a  covenant  against  his  own  encumbrances. 
Ennis  v.  Leach,  1  Ired.  Eq.  R.  41G.0 

(I)  Trustee  in  what  Cases  favoured,  and  in  what  Cases  decreed  to  account,  /3  and  of 

their  Liability.^/ 

It  is  a  rule  that  the  cestui  que  trust  ought  to  save  the  trustee  harmless, 
as  to  all  damages  relating  to  the  trust ;  and  it  is  within  the  reason  ftf  that 
rule,  that  where  the  trustee  has  honestly  and  fairly,  without  any  possi- 
bility of  being  a  gainer,  laid  down  money,  by  which  the  cestui  que  trust 
is  discharged  from  being  liable  for  a  greater  sum  lent,  or  from  a  plain 
and  great  hazard  of  being  so,  that  the  trustee  ought  to  be  paid. 

2  P.  Wms.  455,  Balsh  v.  Hyham.    ||  Though  there  is  no  indemnity-clause  the  court 
infuses  such  a  clause  into  every  will.     18  Ves.  254.  || 

s  "Where  the  trustee  of  a  settlement,  empowered  to  lend  the  trust 
moneys  to  the  husband,  on  the  security  of  his  bond  alone,  lent  it  on  his 
note,  and  without  the  requisite  consent  in  writing,  and  upon  the  death  of 
the  remaining  trustee  then  remaining  unpaid,  his  executors  and  devisees 
filed  a  bill  against  the  husband  for  the  restoration  of  the  trust  funds,  the 
appointment  of  new  trustees,  and  to  correct  existing  irregularities  as  to 
the  trust  estate ;  held,  that  the  plaintiffs  had  a  clear  right,  notwithstand- 
ing the  liability  of  their  testator's  estate,  to  file  the  bill,  and  upon  the 
funds  being  restored,  to  have  some  one  to  whom  they  might  safely  convey 
the  legal  estate,  and  be  relieved  from  further  responsibility:  held,  also, 
that  when  a  trustee  finds  the  trust  estate  involved  in  intricate  and  com- 
plicated questions,  which  could  not  have  been  contemplated  at  the  time 
of  undertaking  the  trust,  he  has  a  right  to  come  to  the  court  to  be  re- 
lieved, and  will  be  favourably  considered. 

■irreenwood  v.  Wakeford,  1  Beav.  576. £f 

[And  if  a  trustee  errs  in  the  management  of  the  trust,  and  is  guilty  of 

a  breach  of  trust,  yet,  if  he  goes  out  of  the  trust  with  the  approbation  of 

the  cestui  que  trust,  the  breach  of  trust  ought  rather  to  fall  upon  the 

estate  of  cestui  que  trust;  for  the  courts  are  ever  anxious  to  deliver  the 

trustee  from  any  misapplication  of  the  trust  money. 

Trafford  v.  Boehm,  3  Atk.  444;  ||  4  EusselL  272.  ||  3  Where  a  trustee  acts  to  the 
best  of  his  judgment,  he  will  lie  protected,  although  he  may  have  made  some  trifling 
mistakes.  Hoot  v.  Yeomans,  15  Pick.  488.  See  9  Pick.  440  ;  18  Pick.  181 ;  20  Pick. 
116.0 

But  it  is  an  established  rule,  that  a  trustee,  executor,  or  administrator, 
shall  have  no  allowance  for  his  care  and  trouble :  the  reason  of  which 
seems  to  be,  that  on  these  pretences,  if  allowed,  the  trust-estate  might  be 
loaded  and  rendered  of  little  value.  Besides,  the  great  difficulty  there 
might  be  in  settling  and  adjusting  the  quantum  of  such  allowance,  es- 
pecially as  one  man's  time  may  be  more  valuable  than  that  of  another, 


248  USES   AND    TRUSTS. 

(I)  Trustee  where  favoured,  and  where  to  account. 

and  there  can  be  no  hardship  in  this  case  upon  any  trustee,  who  may 
choose  whether  he  will  accept  the  trust  or  not. 

Robinson  v.  Pett,  3  P.  Wins.  251.  See  Harwood  v.  Harrison,  Mos.  128.]  {See 
4  Ves.  J.  596,  Ilovey  v.  Blakeinan.  An  executor  in  India,  passing  bis  accounts  in 
Cbancery  in  England,  is  entitled  to  the  commission  upon  the  receipts  or  payments, 
according  to  the  practice  in  India.  4  Ves.  J.  72,  Cheltham  v.  Lord  Andley.  J  [j  Cham- 
bers v.  Goldwin,  5  Ves.  834 ;  9  Ves.  254.  In  re  Ormsby,  1  Ball.  &  Bea.  189 ;  sed 
vide  Ellison  v.  Airey,  1  Ves.  115;  Brown  v.  Litton,  1  P.  Wins.  140.||  ,3As  to  the 
allowance  of  compensation  to  trustee,  see  post  (O.)g 

||  But  though  a  trustee  be  not  allowed  for  his  trouble,  it  seems  that  if 
he  employ  a  bailiff  to  manage  the  trust  estate,  he  must  "be  allowed  for 
the  employment  of  and  payments  made  to  such  bailiff. 

Bonithorn  v.  Hockmore,  1  Vern.  316  ;  Wilkinson  v.  Wilkinson,  2  Sim.  &  Stu.  237. 

And  a  trustee  is  entitled  to  his  costs,  unless  he  acts  with  obstinacy  and 
caprice. 

Forrest  v.  Elwes,  2  Meriv.  68 ;  Taylor  v.  Glanville,  3  Madd.  178 ;  O'Callaghan  v. 
Cooper,  5  Ves.  117  ;  post,  249.  || 

[An  executor  in  trust  who  had  no  legacy,  and  where  the  execution  of 
the  trust  was  likely  to  be  attended  with  trouble,  at  first  refused,  but  af- 
terwards agreed  with  the  residuary  legatees,  in  consideration  of  100  guineas, 
to  act  in  the  executorship,  and  he  dying  before  the  execution  of  the  trust 
was  completed,  his  executors  brought  a  bill  to  be  allowed  these  100 
guineas  out  of  the  trust-money  in  their  hands,  insisting  that  the  residuary 
legatees  might  as  well  make  a  contract  with  the  executor,  touching  the 
overplus,  (which  was  their  own  property,)  as  the  testator  himself;  and 
that  no  harm  could  happen  thereby  to  the  trust-estate.  But  the  court 
said,  all  bargains  of  this  kind  ought  to  be  discouraged,  as  tending  to  eat 
up  the  trust;  and  here  the  executor  had  died  before  he  had  finished  the 
affairs  of  the  trust :  wherefore  the  plaintiff's  demand  was  disallowed. 

Gould  v.  Fleetwood,  Mos.  128.  In  Ayliffe  v.  Murray,  2  Atk.  60,  Ld.  Hardwicke  is 
reported  to  say,  "  If  a  trustee  comes  in  a  fair  and  open  manner,  and  tells  the  cestui 
que  trust  that  he  will  not  act  in  such  a  troublesome  and  burdensome  office,  unless  the 
cestui  que  trust  will  give  him  a  further  compensation  over  and  above  the  terms  of  the 
trust,  and  it  is  contracted  for  between  them,  I  will  not  say  this  court  will  set  it  aside, 
though  there  is  no  instance  where  they  have  confirmed  such  a  bargain." 

It  seems  to  be  owing  to  this  jealousy,  which  a  court  of  equity  enter- 
tains of  an  executor  or  trustee,  that  if  they  compound  debts  or  mortgages, 
and  buy  them  in  for  less  than  is  due  thereon,  they  shall  not  take  the 
benefit  of  it  themselves,  but  other  creditors  and  legatees  shall  have  the 
advantage  of  it,  and  for  want  of  them,  the  benefit  shall  go  to  the  party 
who  is  entitled  to  the  surplus ;  whereas,  if  one  who  acts  for  himself,  and 
is  not  in  the  circumstances  of  an  executor  or  trustee,  buys  in  a  mortgage 
for  less  than  is  due,  or  for  less  than  it  is  worth,  he  shall  be  allowed  all 
that  is  due  thereon.  Thus  in  the  case  of  Baldwyn  v.  Banister,  heard  at 
the  Rolls,  Pasche,  1718.  The  case  was,  a  mortgagor  in  fee  died,  and  the 
mortgagee  brought  in  the  mortgagor's  wife's  right  of  dower.  Decreed, 
that  the  heir  of  the  mortgagor,  on  his  bringing  a  bill  to  redeem,  should 
have  the  benefit  thereof,  on  this  principle,  that  the  mortgagee  is  but  a 
trustee  for  the  mortgagor  after  the  money  paid.  So,  in  the  case  of 
Powell  v.  Glover,  Mich.  1721,  at  the  Rolls,  where  a  guardian  compounded 
debts,  decreed,  that  it  should  be  for  the  benefit  of  the  infant. 

Gould  v.  Fleetwood,  Mos.  128;  {6  Ves.  J.  625,  Ex  parte  Lacey ;  8  Ves.  J.  337, 
Ex  parte  James.}  1  Salk.  155  ;  1  Vern.  476;  2  Atk.  54.  ||  See  Phayre  v.  Peree. 
3  Dow.  P.  C.  116 ;  Fox  v.  Mackreth,  2  Bro.  C.  C.  400;  2  Cox,  S20.|| 


USES  AND  TRUSTS.  249 

(I)  Trustee  where  favoured,  and  where  to  account. 

So,  it  hath  been  holden  upon  the  same  principle,  that  a  trustee  shall 
not  be  allowed  to  become  the  purchaser  of  that  which  he  holds  in  trust. 
It  is  said,  indeed,  in  one  case,(a)  that  if  the  title  be  re  vera  in  a  third 
person,  the  trustee  may  purchase  as  well  as  any  one  else. 

Whelpdale  v.  Cookson,  1  Yes.  9;  Killick  v.  Flexuey,  4  Bro.  Chan.  R.  1G1.  3See 
Williamson  v.  Seaber,  3  Younge  &  C.  717 ;  Wilkins  v.  Stevens,  1  Younge  &  C.  431. $ 
)|  See  Witcbcote  v.  Laurence,  3  Ves.  740.  Campbell  v.  Walker,  5  Vcs.  678;  Ex  parte 
Reynolds,  Ibid.  707  ;  Ex  parte  Hughes,  6  Ves.  617  ;  Ex  parte  Lacey,  Ibid.  625  ;  Lis- 
ter v.  Lister,  Ibid.  631 ;  Ex  parte  James,  8  Ves.  337  ;  Coles  v.  Treco'thick,  7  Ves.  234 ; 
Ex  parte  Morgan,  12  Ves.  G.  Where  a  security  is  made  by  way  of  mortgage  with  a 
power  of  sale,  the  donee  of  the  power  is  a  trustee  within  the  rule.  Downes  v.  Graze- 
brook,  3  Meriv.  200.  In  Montesquieu  v.  Sandys,  18  Ves.  313,  Lord  Eldon  observes, 
there  is  no  authority  establishing  that  an  attorney  cannot  purchase  from  his  client  what 
was  not,  in  any  degree,  the  object  of  his  concern  as  attorney.  See  also  Woods  v.  Downes, 
18  Ves.  120 ;  Hooper  v.  Goodwin,  Cooper,  95  ;  and  note  (a),  3  Meriv.  209.  In  Sander- 
son v.  Walker,  13  Ves.  601,  Lord  Eldon  also  observed,  "  The  principle  has  often  been 
laid  down  that  a  trustee  for  sale  may  be  the  purchaser,  in  this  sense,  that  he  may  con- 
tract with  his  cestui  que  trust  that  with  reference  to  the  contract  uf  purchase  they  shall 
no  longer  stand  in  the  relative  situation  of  trustee  and  cestui  que  trust ;  and  that  the 
trustee  having,  through  the  medium  of  that  sort  of  bargain,  evidently,  distinctly,  and 
honestly  proved  that  he  had  removed  himself  from  the  character  of  trustee,  his  pur- 
chase may  be  sustained."  And  see  11  Ves.  226,  Gregory  v.  Gregory,  Coop.  201 ; 
Attorney-General  v.  Lord  Dudley,  Coop.  146  ;  Randall  v.  Errington,  10  Ves.  423  ;  Chal- 
mers v.  Bradlev,  1  Jac.  &  W.  51 ;  Navlor  v.  Winch,  1  Sim.  &  Stu.  555. ||  (a)  Leslie's 
case,  2  Freem.  52;]   ||  Oherlihy  v.  Hodges,  1  Scho.  &  Lef.  123,  acc.\\ 

A  trustee  shall  not  be  charged  with  imaginary  values,  but  only  as  bai- 
liff, though  very  supine  negligence  might,  indeed,  in  some  cases,  charge  a 
trustee  with  more  than  he  had  received ;  but  the  proof  thereof  must  be  very 
strong ;  and  it  is  a  hardship  on  him,  that  he  is  allowed  nothing  for  his  pains. 
It  has  been  said  likewise,  that  it  tvas  a  hard  rule  to  charge  a  trustee  with 
what  he  had  made,  or  might  have  made,  without  his  wilful  default :  but  the 
reason  ivas,  because  the  court  could  never yet find ivhere  else  to  fix  the  measure. 

1  Vera.  144,  Palmer  v.  Jones.  {He  shall  be  charged  with  a  loss  occasioned  by  his 
negligence,  or  want  of  caution,  though  he  act  innocently.  See  5  Ves.  J.  141,  Yez  v. 
Emery ;  0  Ves.  J.  488,  Caffrey  v.  Darby ;  9  Ves.  J.  103,  French  v.  Hobson. } 

The  defendant  was  trustee  to  the  plaintiff,  an  infant,  and  received  for 

him  40?.  in  gold;  the  trustee  was  robbed  by  his  own  servant,  who  lived 

with  him  in  the  house,  of  200/.,  together  with  this  40?.,  which  last  sum 

was  only  proved  by  the  defendant's  own  oath ;  yet  my  Lord  Chancellor 

allowed  it  on  account,  for  he  was  but  to  keep  it  as  his  own. 

2  Chan.  Ca.  2,  Morley  v.  Morley ;  { 1  Cain.  Er.  96,  Furman  v.  Coe.  So,  if  the  pro- 
perty is  carried  off  by  an  enemy,  the  trustee  is  excused.     1  Bay.  328.  J 

If  a  trustee,  sued  for  the  trust  estate,  obtains  a  decree  with  costs  of 
course,  and  the  costs  taxed  him  are  short  of  his  real  costs  ;  and  the  cestui 
que  trust  exhibits  a  bill  for  an  account  of  the  trust  estate ;  the  trustee, 
in  his  disbursements,  shall  be  allowed  the  full  and  necessary  costs,  and 
shall  not  be  concluded  by  the  costs  taxed. 

2  Chan.  Ca.  138,  Amand  v.  Bradburne  ;  { 10  Ves.  J.  184,  Fearnes  v.  Young. }  [If  a 
trustee  has  not  misbehaved  himself,  it  is  the  rule  to  allow  him  his  costs.  Perrott  v.  Trebv, 
Pr.  Ch.  254  ;  1  Eq.  Ca.  Abr.  125,  pi.  4,  S.  C. ;  ||  Taylor  v.  Glanville,  3  Mad.  178.  ||  Seats, 
if  he  has  misbehaved  himself.  Dawson  v.  Parrott,  3  Bro.  Ch.  R.  236 ;  Ball  v.  Montgomery, 
2  Yes.  J.  191 ;  Horsley  v.  Challoner,  2  Ves.  83.  J  ||  If  a  trustee  refuse  to  pay  a  legacy 
without  the  court's  direction  in  a  case  admitting  of  no  doubt,  he  will  be  refused  costs. 
Knight  y.  Martin,  1  Rubs.  &  Mylne,  70.  And  a  trustee  will  not  be  allowed  the  amount  of 
costs  paid  to  his  solicitor  without  epiestion.  The  master  will  not  moderate  amount. 
Johnson  v.  Telford,  3  Russell,  477.  And  trustees  of  a  charity  (though  not  in  fault) 
cannot  be  allowed  the  costs  of  an  unsuccessful  attempt  to  obtain  an  act  for  administer- 
ing the  property.     Attorney-General  v.  Mansfield,  2  Russell,  50  ;  and  see  Ibid. 

Vol.  X. — 32 


250  USES  AND  TRUSTS. 

(I)  Trustee  -where  favoured,  and  -where  to  account. 

If  two  estates  are  conveyed  to  a  trustee  for  payment  of  several  and 
distinct  debts,  and  the  heir  at  law  brings  a  bill  for  an  account,  and  after- 
wards prays  that  the  bill  may  be  dismissed  as  to  one  of  the  estates,  yet 
an  account  shall  be  taken  of  both  estates. 

1  Vera.  28,  Purefoy  v.  Purefoy. 

A  devised  100/.  a-piece  to  four  children,  payable  at  twenty-one,  or 
marriage,  with  maintenance  not  exceeding  the  interest  in  the  mean  time  : 
B  was  appointed  trustee  of  a  trust-estate,  to  raise  and  pay  the  legacies 
as  aforesaid ;  and  he  paid  20/.  in  placing  out  one  of  the  children  appren- 
tice, who  died  before  his  age  of  twenty-one  years :  the  court  held,  that 
that  20/.  was  well  laid  out,  and  that  the  trustee  should  be  allowed  it : 
though  the  100/.  was  limited  over,  in  case  of  death  before  twenty-one,  or 

marriage. 

2  Yern.  137,  Franklin  v.  Green. 

But,  if  a  trustee  for  the  payment  of  children's  portions  pay  one  of  them 
his  full  share,  and  the  trust-estate  decay,  he  shall  not  be  allowed  such  pay- 
ment. It  was  urged,  in  this  case,  that  though  the  appointment  was  to  pay 
the  eldest  in  the  first  place,  &c,  yet  it  would  not  be  good,  as  it  did  not 
denote  preference  in  the  quantity  of  the  sum  to  be  paid :  but  my  Lord 
Keeper  was  of  another  opinion  as  to  this  point.  It  seems  clearly  agreed, 
however,  that  a  specific  legatee  may  be  paid  in  the  first  place. 

2  Chan.  Cas.  132,  Tilsley  v.  Throckmorton. 

{An  executor  neglecting  to  call  in  or  bring  an  action  for  a  bond  debt 
will  be  charged  with  the  amount. 

2  Bro.  C.  C.  15G,  Lowson  v.  Copeland ;  5  Ves.  J.  839,  Powell  v.  Evans.  See  1  Bay. 
304,  Legatees  of  Ash  v.  Exr.  of  Ash. } 

If  one  devise  to  trustees,  and  by  an  express  clause  give  them  power  to 
appoint  agents  to  manage  the  land,  and  they  appoint  one  then  solvent  and 
good,  though  after  he  prove  insolvent,  they  shall  not  answer  for  him ;  but 
it  is  otherwise,  if  he  were  not  solvent  at  the  time  of  nomination.  But,  if 
there  were  no  such  direction  or  power  in  the  will,  the  trustees  are  bound 
to  answer  for  their  agents  at  all  events.  Per  Lord  Keeper  Wright. 
12  Mod.  5G0,  Sutton  the  Marshal's  case. 

{If  an  executor  deposits  money  in  the  hands  of  his  testator's  banker, 
who  is  solvent  at  the  time,  but  afterwards  becomes  insolvent,  the  execu- 
tor shall  not  be  charged  with  the  loss. 

3  Ves.  J.  5G5,  Rowth  v.  Howell ;  1  Dick.  120,  Knight  v.  Earl  of  Plymouth.  And 
see  5  Yes.  J.  331,  Bacon  v.  Bacon  ;  7  Ves.  J.  193  ;  6  Ves.  J.  226,  Adams  v.  Claxton  ; 
11  Ves.  J.  377,  Wren  v.  Kirton.} 

If  a  trustee  empowered  to  put  money  to  interest  let  the  money  lie  by 
him,  he  shall  be  accountable  for  interest.     Per  Harcourt,  Lord  Keeper. 

Brown  v.  Litton,  10  Mod.  21.  ||  See  Young  v.  Combe,  4  Ves.  101 ;  Byrchall  v. 
Bradford,  G  Madd.  13.])  [Bird  v.  Lockey,  2  Vera.  744;  Perkins  v.  Bayntum,  1  Bro. 
Ch.  R.  375 ;  Franklin  v.  Firth,  3  Bro.  Ch.  R.  433,  S.  P.  A  trustee  neglecting  to  pay 
money  into  court  after  an  order  for  that  purpose,  shall  be  charged  with  interest,  but 
a  slight  difference  between  the  sums  remaining  in  his  hands,  and  those  reported  due 
by  -t iTo  Master,  is  not  a  sufficient  reason  for  the  court  to  order  him  to  pay  interest. 
Sammes  v.  Riekman,  2  Ves.  Jun.  3G.J  {He  shall  pay  interest  where  he  has  been 
guilty  of  neglect  in  not  putting  out  money,  or  where  he  has  made  use  of  it  himself. 
4  Ves.  J.  101,  Youngo  v.  Combe ;  Ibid.  620,  Piety  v.  Stace ;  7  Ves.  J.  124,  Longmore 
v,  Broom  ;  8  Yes.  J.  48,  Lord  Chedworth  v.  Edwards;  11  Ves.  J.  58,  Rooke  v.  Hart; 
Ibid.  92,  Raphael  v.  Boehm  ;  Ibid.  581,  Mosley  v.  Ward;  12  Ves.  J.  386,  Bruere  v. 
Pemberton;  1  Binn.  194,  Fox  v.  Wilcocks ;  2  Binn.  300,  Guier  v.  Kelly;  1  Wash. 
246,  Cranberry's  Exr.  v.  Cranberry. } 


USES   AND    TRUSTS.  2,1 

(I)  Trustee  -where  favoured,  and  where  to  account. 

Likewise,  although  an  executor  or  trustee  is  not  empowered  or  directed 
to  place  out  money  at  interest,  yet,  if  he  makes  interest,  he  shall  be  ac- 
countable for  it.     Decreed  accordingly. 

2  Vena.  548,  Lee  v.  Lee  ;  [1  Bro.  Ch.  R.  375,  Perkins  v.  Bayntum  ;  Ibid.  384,  Trevis 
v.  Townshend;  Ibid.  359,  Newton  v.  Bennett;  1  Vern.  196,  Radcliffe  v.  Graves, 
8.  P.  ;  {3  Bro.  C.  C.  73,  Littlchales  v.  Gascoyne.}  And  if  a  trustee  appear  to  have 
employed  the  trust-money  in  trade,  whence  he  has  derived  profits  beyond  the  rate  of 
interest,  he  shall  account  for  the  whole  of  those  profits.  Brown  v.  Litton,  10  Mod.  21  : 
Forbes  v.  Ross,  2  Bro.  Ch.  R.  430.]  ||It  is  in  the  option  of  cestui  que  trust  to  take  the 
interest  or  the  profits,  and  they  must  elect.  Heathcote  v.  Hulme,  1  Jac.  &  Walk. 
122  ;||  j3  Docket  v.  Somes,  2  Mylne  &  K.  655,  acc.tf 

But  afterwards,  a  difference  was  taken  by  Lord  Macclesfield,  viz.,  that 
if  an  executor  or  trustee  of  money  places  it  out  in  the  funds,  or  on  other 
security,  whereby  he  gains  considerably,  he  shall  have  the  whole  benefit 
thereof  to  himself,  in  respect  of  the  hazard  he  runs  of  being  a  consider- 
able loser  thereby,  which  he  must  have  borne ;  but,  if  such  trustee  or 
executor  were  an  insolvent  person  at  the  time  of  placing  out  such  trust- 
money,  there  the  cestui  que  trust  shall  have  the  whole  benefit  gained 
thereby ;  as  he  only  could  have  borne  the  loss  thereof,  if  any  had  hap- 
pened ;  the  trustee  or  executor,  by  reason  of  his  insolvency,  being  inca- 
pable thereof,  and  consequently  running  no  hazard  at  all. 

1  Abr.  Eq.  Ca.  398,  Bromfield  v.  Wytherly.  [The  doctrine  here  advanced,  though 
sanctioned  by  great  opinions  in  subsequent  cases,  Adams  v.  Gale,  2  Atk.  106  ;  Child 
v.  Gibson,  Ibid.  613,  is  not  to  be  considered  as  law.  Newton  v.  Bennett,  1  Bro.  Ch. 
R.  359  ;  Horsley  v.  Challoner,  2  Yes.  85.] 

If  a  trustee  is  directed  to  place  out  money  on  the  best  security  that 
can  be  got,  with  the  consent  of  husband  and  wife ;  and  he  puts  it  into  a 
banker's  hand,  and  take  his  note  for  it,  and  he  becomes  a  bankrupt,  by 
which  the  loss  happens  ;  the  trustee  shall  be  decreed  to  pay  the  money 
out  of  his  own  pocket,  though  no  fraud  appear,  and  though  the  consent 
of  husband  and  wife  be  had  to  it. 

Rider  v.  Bickerston,  MS.  Rep.  ||3  Swanst.  80,  notd,  S.  C.||  [Vide  Ambl.  219, 
contra.]     (3  See  Greenwood  v.  Wakeford,  1  Beav.  576. £/ 

-3 Where,  instead  of  following  the  direction  to  invest  the  fund  in  consols, 
and  accumulate  the  dividends,  the  trustees  invested  it  in  mortgage,  held 
liable  to  make  the  fund  good  to  the  extent  it  would  have  reached,  if  the 
direction  had  been  complied  with. 

Pride  v.  Fooks,  2  Beav.  430. tf 

||  Where  a  receiver  having  received  a  large  sum  for  rents  did  not  think 
it  safe  to  remit  the  money  to  London,  and  therefore  paid  it  to  a  consider- 
able tradesman,  and  took  bills  on  London  for  the  amount ;  the  tradesman 
soon  after  becoming  bankrupt,  the  receiver  was  held  not  to  be  accountable 
for  the  money,  the  tradesman  having  been  in  good  credit  at  the  time. 

Knight  v.  Ld.  Plymouth,  3  Atk.  480  ;  and  see  Rowth  v.  Howell,  3  Ves.  565  ;  Adams 
v.  Claxton,  6  Ves.  226. 

But  where  the  receiver  took  a  bill  for  a  debt  due  to  the  estate,  and 
remitted  it  to  his  own  bankers  on  his  general  account,  he  was  held  liable 
to  the  loss  on  the  failure  of  the  bankers,  the  Lord  Chancellor  distinguish- 
ing this  from  the  case  of  Knight  v.  Plymouth,  since  that  was  a  single 
transaction,  but  this  was  mixed,  and  he  would  not  allow  a  receiver  so  to 
deal,  that  if  the  solvency  of  the  banker  continued,  the  property  was  his 
own,  but  if  insolvency  happened,  part  of  the  account  was  to  be  of  the 

trust  estate. || 
Wren  v.  Kirton,  11  Ves.  382 ;  and  see  Rocke  v.  Hart,  11  Ves.  60  ;  Massey  v.  Ban- 


252  USES    AND   TRUSTS. 

(I)  Trustee  where  favoured,  and  where  to  account. 

ner,  4  Modd.  413  ;  1  Jac.  &  Walk.  241 ;  Eobinson  v.  Ward,  1  Ryan  &  Moody,  N.  P. 
Ca.  274,  acc.\\ 

[It  hath  been  holden,  that  if  an  executor  invests  money  in  the  funds, 
he  shall  not  be  liable  to  the  fall  of  stocks ;  because  the  court,  if  applied 
to,  would  have  made  the  same  appropriation. 

Ex  parte  Champion,  cited  in  Ilutcheson  v.  Hammond,  3  Bro..Ch.  11.  147. 

Where  a  trustee  sells  out  stock  contrary  to  the  trust,  the  cestui  que  trust 
may  elect  to  have  the  stock  restored,  or  the  produce  of  it  paid.  But  if  a 
trustee  for  the  benefit  of  the  trust-estate  sells  out  of  one  fund,  and  invests 
the  produce  in  another,  or  transfers  the  money  from  one  real  security  to 
another,  the  property  continues  unaltered,  and  he  shall  not  be  chargeable. 

Harrison  v.  Harrison,  2  Atk.  121 ;  Bostock  v.  Blakeney,  1  Bro.  Ch.  R.  1656  ; 
Waite  v.  Whorwood,  2  Atk.  159  ;  Worsley  v.  Earl  of  Scarborough,  3  Atk.  392 ;] 
{4  Ves.  J.  622,  Piety  v.  Stace  ;  12  Ves.  J.  402,  Bate  v.  Scales;}  ||  Pocock  v.  Redding- 
ton,  5  Ves.  J.  794 ;  Long  v.  Stewart,  5  Ves.  800 ;  Widdowson  v.  Buck,  2  Meriv.  494 ; 
Powlett  v.  Herbert,  1  Ves.  297.|| 

{A  trustee  is  entitled  to  interest  I1}  upon  advances  {2}  made  for  the  use 
of  cestui  que  trust,  to  supply  the  deficiency  of  the  trust  fund.  He  is  also 
entitled  to  allowance  for  depreciated  paper  money  {"}  paid  to  him  for  rent 
of  the  trust  estate,  and  for  expenses  incurred  in  erecting  proper  and  neces- 
sary buildings  upon  it,  although  the  cestui  que  trust  was  not  consulted. 

1  Binn.  488,  Lessee  of  Dilworth  v.  Sinderling.  Vide  7  Ves.  J.  480,  Webb  v.  Earl 
of  Shaftesbury,  f1}  1  Binn.  135,  Cecil'a  Lessee  v.  Korbman.  {'-}  And  he  has  a  lien 
on  the  trust-estate  for  them.  1  Binn.  126,  Frazer's  Lessee  v.  Hallowell,  and  Cecil's 
Lessee  v.  Korbman,  there  cited,     p}  1  Wash.  226,  Sallee  v.  Yates.} 

||  "Where  trustees  represented  that  the  fund  was  invested  in  stock,  they 
were  held  to  be  chargeable  with  5  per  cent,  interest,  on  the  same  princi- 
ple as  if  they  had  sold  the  stock  and  used  the  money,  since  it  was  the 
established  option  of  the  cestui  que  trust  to  have  the  actual  profit  made, 
or  5  per  cent,  interest. 

Bate  v.  Scales,  12  Ves.  402;  and  see  10  Ves.  470;  6  Madd.  235. 

But  while  the  original  stock  remains  vested  in  their  names,  or  if  they 
purchase  any  other  stock,  in  pursuance  of  a  power  reserved  to  them, 
trustees  will  not  be  answerable  for  the  falling  of  such  original  stock  in 
the  one  instance,  nor  of  the  new  fund  in  the  other. 

Jackson  v.  Jackson,  1  Atk.  513.  The  discretionary  power  of  trustees  to  vary  secu- 
rities is  not  controlled  by  the  Court  of  Chancery,  unless  ruinously  exercised.  Do 
Mannerville  v.  Crompton,  1  Ves.  &  B.  354. 

On  the  marriage  of  Lord  Montfort,  a  settlement  was  made  of  a  renew- 
able lease,  in  trust  out  of  the  rents  to  pay  the  renewal  fines  and  charges, 
and  subject  thereto  for  the  husband  and  wife  successively  for  life,  with 
remainder  for  the  first  son  at  twenty-one.  The  trustees  having  neglected 
to  renew,  they  were  held  answerable  as  for  a  breach  of  trust,  and  liable 
to  pay  to  the  son  what  he  had  laid  out  in  procuring  a  renewal,  but  to  be 
repaid  out  of  the  estates  of  the  tenant  for  life,  with  reference  not  to  the 
duration  of  their  possession  respectively,  but  to  the  proportions  in  which 
they  would  actually  have  suffered  a  diminution  of  rent,  in  case  the  rents 
had  been  properly  applied  towards  the  renewals. 

Montfort  v.  Cadogan,  17  Ves.  485  ;  2  Meriv.  3. 

Trustees  and  their  representatives  are  liable  in  equity  for  a  breach  of 
trust,  although  they  derive  no  benefit  from  it,  and  although  it  happen 
without  any  corrupt  motive. 

Adaix  v.  Shaw,  1  Scho.  &  Lef.  272 ;  Scurfield  v.  Howes,  3  Bro.  C.  C.  91 ;  Caffrey 


USES  AND  TRUSTS.  253 

(I)  Trustee  where  favoured,  and  where  to  account. 

v.  Darl'V,  6  Yes.  488 ;  "Wilkinson  v.  Parry,  4  Russell,  272.  As  to  the  mode  in  which 
trustees  must  make  up  their  accounts,  see  Montgomery  v.  Wauchope,  4  Dow.  Purl. 
Ca.  109.11 

0  A  trustee  purchasing  the  trust-estate  at  an  undervalue,  decreed  to  be 
the  purchaser  and  account  at  the  present  improved  value,  he  being  al- 
lowed for  permanent  improvements. 

Williamson  v.  Seatfer,  3  Younge  &  C.  717.  See  Richardson  v.  Jones,  3  Gill.  & 
Johns.  163;  Davis  v.  Simpson,  5  JIarr.  &  Johns.  147;  Dorsey  v.  Dorscv'-;  heirs, 
3  Ilarr.  &  Johns.  410  ;  Haddix  v.  Haddix,  5  Litt,  202 ;  Brackenridge  v.  Holland,  2 
Blackf.  377  ;  2  Johns.  Ch.  25G ;  3  Paige,  178  ;  1  Paige,  393. 

"Where,  after  a  lapse  of  twenty  years,  it  was  alleged  that  an  estate  had 
been  purchased  by  an  administratrix  with  the  intestate's  estate,  the  court, 
upon  evidence  of  loose  conversations  only,  refused  to  consider  the  pur- 
chase as  a  trust. 

Wilkins  v.  Stevens,  1  Younge  &  C.  431. 

A  trust-estate  is  liable  for  necessaries  furnished  on  its  account,  though 
purchased  by  a  general  agent  of  the  estate. 

Montgomery  v.  Eveleigh,  1  M'Cord's  Ch.  R.  267  ;  Cater  v.  Eveleigh,  4  Desaua. 
19  ;  Maywood  v.  Johnston,  1  Hill's  Ch.  230;  James  v.  Mayrant,  4  Desaus.  591.  See 
Markan  v.  Guerrant,  4  Leigh,  279. 

Where  trustees  have  accepted  of  the  trust  and  entered  upon  its  execu- 
tion, they  cannot  afterwards,  Avithout  the'  consent  of  the  cestui  que  trust, 
or  the  direction  of  the  court,  surrender  or  discharge  themselves  of  the 
trust.  Thus  a  debtor  having  assigned  property  for  the  benefit  of  his  cre- 
ditors, and  A  B,  one  of  the  cestuis  que  trust,  being  in  England  at  the  time 
was  not  apprized  of  it,  and  the  trustees  subsequently  assigned  the  trust- 
estate  to  other  trustees,  upon  other  trusts,  which  would  have  deprived  A 
B  of  his  rights.  Held  that  the  second  trustees,  knowing  the  nature  of 
the  first  assignment,  were  chargeable  with  the  trusts  contained  in  it. 

Shepherd  v.  M'Evers,  4  Johns.  Ch.  136. 

It  is  the  duty  of  trustees  to  keep  the  trust-funds  separate  and  distinct 
from  their  private  funds.  If  they  use  the  trust  funds,  or  use  them  with 
their  own,  they  will  be  liable  for  all  losses  which  may  arise  by  their 
neglect  or  mismanagement. 

Case  v.  Abeel,  1  Paige,  393 ;  Myers  v.  Myers,  2  M'Cord,  Ch.  265  ;  Brackenridge 
v.  Holland,  2  Blackf.  377. 

A  trustee  who  improperly  suffers  the  funds  to  pass  into  the  hands  of 
his  co-trustee,  is  responsible  in  case  of  loss. 

Mumford  v.  Murray,  6  Johns.  Ch.  16,  452.  See  Monnell  v.  Monnell,  5  Johns.  Ch. 
296. 

* 

Where  trustees  are  authorized  to  invest  in  stock  or  in  real  security, 
and  they  lend  on  personal  security,  they  are  liable  for  the  principal  money 
only,  and  not  for  the  value  of  the  stock  they  might  have  purchased. 

Marsh  v.  Hunter,  6  Mad.  295. 

The  expense  of  putting  into  tenantable  repair  an  estate  purchased  by  a 
trustee,  is  a  charge  on  the  principal  fund ;  that  of  keeping  it  in  repair  is 
chargeable  to  the  income. 

Parsons  v.  Winslow,  16  Mass.  361. 

It  is  a  rule  well  settled  in  the  English  Chancery,  adopted  in  New  Jer- 
sey, that  if  trustees  loan  money  without  due  security,  they  are  liable  in 
case  of  insolvency. 

Gray  v.  Fox,  Sax.  Ch.  R.  259. 


254  USES  AND  TRUSTS. 

(I)  Trustee  where  favoured,  and  where  to  account. 

Trustees  are  not  allowed  to  retain  to  themselves  profits  made  upon  the 
use  of  the  property  of  the  cestui  que  trust. 

Peyton  v.  Smith,  2  Dev.  &  Bat.  Eq.  339 ;  Voorhees  v.  Stoothoff,  6  Halst.  145 ; 
Trenton  Banking  Company  v.  Woodruff,  1  Green's  Ch.  R.  117. 

When  a  trustee  lends  the  money  of  the  cestui  que  trust  without  due 
security,  he  is  responsible  when- the  borrower  becomes  insolvent. 

Smith  v.  Smith,  4  Johns.  Ch.  281. 

When  the  creator  of  a  trust  prescribes  no  rule  for  the  management  of 
the  trust  estate,  the  law  enjoins  good  faith  ;  that  is,  honesty  and  diligence 
properly  applied ;  and  a  departure  from  the  rule  prescribed,  or  a  failure 
of  good  faith,  will  render  the  trustee  liable. 

Hester  v.  Hester,  Dev.  Eq.  328. 

When  trustees  are  empowered  to  sell  real  estate,  and  with  the  proceeds 
pay  debts  and  make  investments  in  stock,  they  are  not  authorized  to  ex- 
change the  trust  property  for  other  real  estate ;  by  making  such  exchange, 
though  with  the  best  intentions,  they  become  responsible  for  the  value 
of  the  property  parted  with. 

Ringgold  v.  Ringgold,  1  Ilarr.  &  Gill.  11. 

A  trustee  is  not  chargeable  with  imaginary  values,  or  more  than  he  has 
received,  unless  there  be  evidence  of  gross  negligence,  amounting  to  a 
wilful  default. 

Osgood  v.  Franklin,  2  Johns.  Ch,  1 ;  S.  C.  14  Johns.  527. 

When  a  trustee  mismanages  or  puts  the  trust  fund  in  jeopardy,  by  his 
insolvency,  either  existing  or  impending,  he  will  be  restrained  from  fur- 
ther interfering  with  the  estate,  and  compelled  to  deliver  up  the  funds. 

Elmendorf  v.  Lansing,  4  Johns.  Ch.  5G5. 

A  father,  who  is  trustee  for  his  child,  will  not  be  allowed  for  the  main- 
tenance of  such  child,  except  when  the  father  is  in  indigent  circumstances. 
Expenses  of  education  allowed  being  charged  on  the  child's  estate. 

Myers  v.  Myers,  2  M'Cord,  Ch.  264. 

A  trustee  in  the  possession  of  land  is  required  to  account  to  the  cestui 
que  trust,  not  only  for  the  rents  and  profits  actually  received,  but  such  as 
might  have  been  received. 

Rogers  v.  Rogers,  1  Paige,  188. 

When  a  trustee  has  made  bond  fide  advances  for  the  trust  estate,  he 
has  a  right  to  be  refunded  out  of  the  trust  estate. 

Watts  v.  Watts,  2  M'Cord,  Ch.  82 ;  Murray  v.  De  Rottenham,  6  Johns.  Ch.  02. 

A  trustee  cannot  act  for  his  own  benefit  in  a  contract  on  the  subject 
of  the  trust,  as  to  purchase  a  debt  a/t  a  discount. 

Green  v.  Winter,  1  Johns.  Ch.  27  ;  Parkist  v.  Alexander,  1  Johns.  Ch.  394 ;  Hold- 
ridge  v.  Gillespie,  2  Johns.  Ch.  30  ;  Hart  v.  Ten  Eyck,  4  Johns.  104  ;  Davoue  v.  Fan- 
ning, 2  Johns.  Ch.  256 ;  Kellogg  v.  Wood,  4  Paige,  578 ;  M'Clanahans  v.  Henderson, 
2  A.  K.  Marsh.  389. 

For  any  fraudulent  act  committed  by  him,  the  trustee  is  answerable  to 
the  cestui  que  trust. 

Cobb  v.  Thompson,  1  A.  K.  Marsh.  513. 

A  trustee  is  not  allowed  to  keep  the  income  of  the  estate,  to  be  accounted 
at  the  termination  of  the  trust,  and,  in  the  mean  time,  to  appropriate  the 
capital  to  the  payment  of  the  annual  expenses  of  the  trust ;  the  income 
should,  in  the  first  place,  be  applied  to  the  support  of  the  cestui  que  trust, 


USES   AND    TRUSTS.  255 

(K)  How  far  Trustees  are  answerable  for  each  other. 

if  an  infant,  and  to  answer  to  the  other  exigencies  of  the  trust,  before 
the  principal,  before  any  encroachment  upon  the  principal. 
De  Peyster  v.  Clarkson,  2  Wend.  77. g/ 

(K)  How  far  Trustees  are  answerable  for  each  other. 

Each  trustee  shall  be  charged  for  no  more  than  what  he  actually  re- 
ceived :  but,  where  they  join  in  receipts,  there  they  shall  be  all  charged : 
Per  North,  K. 

Spalding  v.  Chalnier,  1  Yern.  301;  Bridgm.  37,  Townley  v.  Sherborn,  S.  P.  A 
and  B,  trustees,  received  10CKW.  each  on  sale  of  a  trust-estate,  and  both  joined  in  receipt 
for  the  money,  as  they  did  in  the  sale  and  the  conveyances;  B*  became  insolvent. 
Wright,  K.,  doubted  if  A  should  answer  the  whole.  2  Vera.  504,  pi.  453,  Fellows  v. 
Owen;  1  P.  Wms.  81,  pi.  83,  S^C.  And  it  is  there  said  that  the  cestui  que  trust  was 
present,  and  consenting  to  the  payment  as  above;  and  at  his  importunity  the  trust''  a 
joined  in  accmittance  for  the  whole.     Decreed  that  A  should  not  answer  "for  B's  1000Z. 

{If  two  trustees  for  the  sale  of  an  estate  join  in  the  conveyance,  and 
that  conveyance  includes  a  receipt  for  the  consideration  money,  one 
trustee  is  not  answerable  for  the  money  which  goes  into  the  hands  of  the 
other,  and  is  by  him  misapplied.  Their  joining  in  the  conveyance  and 
receipt  was  necessary. 

4  Johns.  Hep.  23,  Kip's  Adm'rs  v.  Deniston. } 

But,  if  two  executors  join  in  the  sale  of  the  goods,  &c,  of  the  testator, 
they  shall  be  both  chargeable,  though  one  of  them  only  received  the 
money,  for  there  was  no  necessity  for  their  joining. 

2  Vera.  570,  Mural  v.  Cos ;  1  Salk.  318,  Churchill  v.  Hopson,  S.  P.  [The  dis- 
tinction between  executors  and  trustees  as  to  this  point  appears  also  in  Applyn  v. 
Brewer,  Pr.  Ch.  173  ;  Attorney-General  v.  Randall,  21  Yin.  Abr.  534.  pi.  9,  et  infra. 
Ex  parte  Belchier,  Ambl.  219  ;  Leigh  v.  Barry,  3  Atk.  584;  Read  v.  Truelove,  Ambl. 
417.  And  notwithstanding  the  inclination  expressed  by  Lord  Ilarcourt  in  Churchill 
v.  Lady  Hobson,  1  P.  Wms.  241,  and  1  Salk.  318,  and  by  Lord  Northington  in  West- 
ley  v.  Clarke,  1  Cox's  P.  Wnis.  82,  to  favour  executors  equally  with  trustees,  yet  the 
distinction  still  prevails ;  and  where  by  any  act  done  by  one  executor,  any  part  of  the 
estate  comes  to  the  hands  of  another  executor,  the  former  will  be  liable  for  his  com- 

S anion  in  the  same  manner  as  if  he  had  enabled  a  stranger  to  receive  it.  Sadler  v. 
[obbs,  2  Bro.  Ch.  R.  117;  Scarfield  v.  Howes,  3  Bro.  Ch.  R.  90;  ||  Brice  v.  Stokes, 
11  Yes.  319 ;  Bradwell  v.  Catchpole,  3  Swanst.  78,  nota ;  Walker  v.  Symonds, 
3  Swanst.  2.  ||  In  Westley  v.  Clarke,  one  of  the  executors  had  actually  received  the 
money  without  the  concurrence  of  his  co-executors,  and  they  signed  the  receipt  after- 
wards ;  so  that,  as  Lord  Thurlow  observed,  in  commenting  upon  that  case,  there  was 
no  act  done  by  the  co-executors  Avhich  put  it  into  the  power  of  the  executor  who  re- 
ceived the  money  to  get  at  it,  since,  in  fact,  he  had  it  at  the  time;  for  Lord  Northington 
said,  that  he  should  have  thought  the  co-executors  liable,  if  they  had  been  present  at  the 
time  when  the  money  was  paid.  See  Cox's  P.  Wms.  241,  note;  ||  1  Eden,  357,  S.  C.|| 
In  Churchill  v.  Lady  Hobson,  ubi  supra,  where  Lord  Ilarcourt  held,  that  where 
executors  joined  in  the  receipt,  and  one  only  actuallyreceived  the  money,  the  latter  onlv 
should  be  chargeable  to  legatees,  though  it  would  be  otherwise  as  to  creditors  (a 
tinction,  by  the  way,  not  to  be  found  in  the  decree,  nor  adopted  in  latter  cases,  Sadler 
v.  Hobbs,  2  Bro.  Ch.  R.  117,  though  to  be  met  with  in  an  earlier  case,  Gibbs  v.  Her- 
ring, Pr.  Ch.  49;)  it  appeared  that  the  executor  who  received  the  money  had  been  the 
testator's  banker,  and  that  circumstance  has  been  considered  as  haying  bad  some  weight 
in  the  determination.]  ||  Where  executors  and  trustees  negligently  joined  in  a  transfer 
of  stock  to  a  co-executor  on  a  false  representation  that  it  was  necessary  to  pay  debts, 
they  were  held  liable  for  the  amount,  except  so  much  as  had  actually  been  applied  to 
pay  debts.     Shipbrook  v.  Ilinchinbrook,  10  Yes.  477.  || 

J  S,  by  will,  1724,  gave  6501.  to  R  and  two  other  trustees  in  trust  to 
build  and  endow  an  alms-house  in  Cornwall  for  maintenance  of  five  poor 
women,  and  made  M  and  N  executors,  and  appointed  the  600^.  to  be  paid 


£56  USES   AND   TRUSTS. 

(K)  How  far  Trustees  are  answerable  for  each  other, 
within  six  months  after  his  death,  with  interest.  R  lived  in  London,  and 
the  other  trustees  in  Cornwall.  R  called  on  the  executors  for  the  money, 
who  refused  to  pay  it,  unless  the  two  other  trustees  would  join  in  a  re- 
ceipt. R  procured  a  receipt,  and  received  all  the  money,  and  paid  at 
times,  by  directions  of  the  other  trustees,  for  building,  &c,  400/. ;  and 
about  four  years  after  the  money  first  received,  failed,  and  was  then  in- 
solvent. On  a  bill  for  an  account  against  all  the  three  trustees,  Lord 
Chancellor  decreed  R  only  to  be  chargeable. 

2  Abr.  Eq.  Ca.  742,  Lord  Chancellor  said,  that  it  could  not  be  expected  that  all  the 
trustees  should  meet  together  to  receive  the  money ;  but,  if  they  had,  either  one  must 
have  had  the  custody  of  the  whole,  or  it  must  be  divided  into  shares.  Suppose  all  the 
money  had  been  lodged  in  a  banker's  hands  bontlf.de,  and  he  had  failed,  should  the 
trustees  have  been  answerable?  &c.  And  if  they  intrust  one  of  themselves  for  conveni- 
ence or  necessity,  at  a  time  when  he  is  solvent,  which  is  no  more  than  making  him  their 
banker,  shall  equity  punish  where  there  is  no  default?  and  this  is  the  very  case  of 
Churchill  v.  Hopson ;  and  to  charge  trustees  in  such  a  case  would  make  the  case  of  the 
trustees,  who  are  necessary  for  the  common  good  and  convenience  of  families,  &c,  very 
perilous;  and  his  lordship  said,  he  saw  no  reason  why  trustees  may  not  make  one  of 
themselves  their  cashier,  where  there  is  no  fraud.  That  this  was  a  reasonable  thing, 
R  at  that  time  being  the  only  trustee  who  lived  in  London,  where  the  money  was  paid, 
&c.  And  as  to  an  objection  made  as  to  letting  the  money  lie  so  long  in  R's  hands,  he 
said  the  case  of  R  differs  from  the  case  of  a  common  banker,  where  the  money  may  be 
drawn  out  at  pleasure  ;  but  here  R  had  as  good  a  right  to  the  keeping  of  it  as  the  others, 
and  all  was  paid  out  to  about  one-third,  and  he  was  intrusted  by  the  testatrix  as  much 

as  the  other.     Ibid. If  one  trustee  directs  the  payment  of  the  trust-money  over  to  the 

others  and  joins  in  the  deed,  he  charges  and  makes  himself  liable  for  the  default  of  the 
other.     Said  to  have  been  so  lately  held  in  Chancery  in  the  case  of  Serjeant  Webb's 

will.     Ibid. [For  where,  by  any  act  or  agreement  of  a  trustee,  money  gets  into  the 

hands  of  his  companion,  they  shall  both  be  chargeable.  Sadler  v.  Hobbs,  2  Bro.  Ch. 
R,  116;  Keble  v.  Thompson,  3  Bro.  Ch.  R.  110.  So,  if  a  trustee  know  of  the  embez- 
zlement of  the  trust-fund  by  his  companion,  he  shall  be  charged  with  the  amount. 
Boardman  v.  Mosman,  1  Bro.  Ch.  R.  68.]  {  So,  if  he  joins  in  a  sale  which  is  unne- 
cessary, and  in  the  receipt,  and  permits  his  co-trustee  to  keep  and  act  with  the  money 
contrary  to  the  trust,  he  shall  be  charged,  though  he  receive  nothing;  11  Yes.  J.  319, 
Brice  v.  Stokes:  unless  the  cestui  que  trust  had  notice  of  the  breach  of  trust  and  acqui- 
esced. Ibid,  and  333,  Langford  v.  Gascoyne.}  ||  Brice  v.  Stokes,  11  Ves.  319;  but 
not  in  respect  of  the  interest  of  a  cestui  que  trust,  who  had  notice  of  the  breach  of  trust, 
and  acquiesced.     Ibid.  Adams  v.  Clifton,  1  Russ.  297. || 

But  if,  upon  the  proofs  of  circumstances,  the  court  be  satisfied  that 
there  be  dolus  mains,  or  any  evil  practice,  fraud,  or  ill-intent  in  him 
that  permitted  his  companion  to  receive  the  whole  profits,  he  may  be 
charged  though  he  received  nothing. 

Bridgm.  38,  Townly  v.  Sherborne. 

0  A  trustee,  by  proving  a  will,  undertakes  the  trust,  and  if  he  stands 
by  inactive,  and  sees  his  co-trustee  commit  breaches  of  trust,  he  will  be. 
liable  should  any  loss  be  incurred ;  but  if  the  cestui  que  trust  concur,  the 
fund  to  which  he  may  be  entitled  will  be  liable  to  compensate  him. 

Booth  v.  Booth,  1  Beav.  125. £ 

If  there  are  two  trustees,  and  one  of  them,  without  warrant  of  the  party 
that  trusts  him,  or  of  a  court  of  equity,  assigneth  his  estate,  and  the  assignee 
receives  the  profits,  and  becomes  insolvent,  he  that  made  the  assignment 
shall  answer  it  for  him ;  but  the  other  original  trustee  shall  answer  for  no 
more  than  what  he  receiveth,  because  the  assignee  cometh  not  in  by  him, 
or  by  his  assent  or  appointment ;  and  in  case  such  original  trustee,  who 
did  not  make  the  assignment,  receive  the  whole  profits  and  become  in- 
solvent, neither  the  assignor  or  assignee  shall  be  answerable  for  them. 

BrLdgni.  38,  Townley  v.  Sherborne;  Cro.  Car.  312,  S.  C.    The  trustees  both  sealed 


USES   AND   TRUSTS.  257 

(K)  How  far  Trustees  are  answerable  for  each  other. 

the  counterpart  of  the  assignment,  and  joined  in  acquittances  for  rent  for  a  year  and 
a  half;  but  one  of  them  never  meddled  further.  Resolved  by  Lord  Keeper,  assisted  by 
four  judges,  whereof  Croke,  J.,  was  one,  that  the  other,  being  only  a  party  intrusted, 
shall  not  be  answerable  for  more  than  came  to  his  hands  ;  for  it  was  the  default  of  him 
who  put  them  in  trust,  to  repose  trust  in  one  who  was  not  able  to  pay ;  and  he  being 
trusted  as  -well  as  the  other,  the  other  shall  not  be  compellable  to  make  good  his  defect ; 
and  so  reversed  a  decree,  whereby  the  other  trustee  was  made  liable  to  pay. — S.  C. 
cited  2  Vern.  51G,  and  it  is  there  said,  that  the  making  joint  trustees  by  the  joining  in 
receipts  to  be  answerable  for  each  other  (as  in  the  above  case)  seemed  to  be  against 
natural  justice,  unless  they  had  so  joined  in  receipt  as  not  to  be  distinguished  what 
had  been  received  by  one,  and  what  by  the  other ;  that  there,  indeed,  of  necessity, 
they  must  both  be  charged  with  the  whole ;  and  that  is  from  their  own  neglect  or 
default ;  as,  if  another  man  should  blend  his  money  with  mine,  by  rendering  my  pro- 
perty uncertain  he  loses  his  own ;  and  that  there  was  a  difference  between  joint  trus- 
tees and  executors  ;  executors  may  act  separately  if  they  think  fit,  but  if  a  trust-estate 
is  to  be  sold,  the  trustees  must  join  in  conveying,  and  also  in  receipts ;  otherwise  no 
one  will  purchase.  And  since  one  trustee  has  equal  power,  authority,  and  interest 
with  the  other,  the  one  cannot  in  reason  insist,  or  desire  to  receive  more  of  the  con- 
sideration-money than  the  other,  or  to  be  more  trustee  than  his  partner  or  co-trustee. 
||  See  Bires  v.  Betty,  6  Madd.  90. || 

||  If  a  settlement  direct  that  a  trustee  on  retiring  shall  assign  the  trust 
property  to  the  continuing  trustee  and  to  a  new  trustee  to  be  appointed 
in  his  place,  the  retiring  trustee  will  be  answerable  for  a  misapplication 
by  the  continuing  trustee,  if  he  assign  to  him  alone. 
Wilkinson  v.  Parry,  4  Russell,  272.  || 

(3  Trustees  are  chargeable  with  loss  to  the  estate  and  interest,  occa- 
sioned by  their  voluntarily  permitting  a  co-trustee  to  receive  purchase- 
money,  and  retain  it  a  considerable  time  before  calling  for  security 
contrary  to  the  trust ;  notwithstanding  a  provision  in  the  will  that  the- 
trustees  should  not  be  answerable  for  any  moneys,  further  than  each 
person  for  what  he  should  respectively  receive. 

Bone  v.  Cook,  McClel.  168. 

A  trustee,  who  stands  by  and  sees  a  breach  of  trust  committed  by  his 
co-trustees,  becomes  responsible  for  that  breach  of  trust. 
Booth  v.  Booth,  1  Beav.  125. 

A  and  B  were  appointed  by  will  trustees  for  a  female  infant.  In  the 
first  place  A  accepted  the  trust  with  an  understanding  that  he  would  not 
interfere  further  than  to  give  his  associate  his  advice.  B  received  the  rents 
for  several  years,  and  was  indebted  to  the  estate  when  he  became  embar- 
rassed in  his  affairs ;  he  then  deposited  in  the  hands  of  A  certain  promis- 
sory notes  and  acceptances,  for  which  A  gave  a  receipt  as  deposit  for  money 
belonging  to  their  ward.  The  friends  of  the  infant  becoming  alarmed,  ap- 
plied to  A,  who  told  them  that  B  had  put  into  his  hands  notes  sufficient 
to  cover  the  trust-funds  which  he,  B,  had  received,  and  that  they  might 
make  themselves  easy  on  that  score,  which  induced  them  to  rest  satisfied. 
Afterwards  A  returned  the  securities  to  B,  who  collected  the  amount  due 
on  them,  and  applied  the  money,  with  other  funds  belonging  to  the  trust, 
to  the  purchase  of  lands  in  Ohio,  and  died  there  insolvent :  held,  1st,  that 
A  was  liable  to  the  cestui  que  trust  for  the  amount  of  securities  he  re- 
delivered to  B,  with  interest ;  2dly,  that  the  cestui  que  trust  was  not  bound 
to  proceed  against  the  estate  of  B  in  Ohio,  without  the  request  of  A. 

Estate  of  Mary  Evans,  2  Ashm.  470.0 

Vol.  X.— 33  y  2 


258  USES  AND  TRUSTS. 

(L)  In  what  Cases  Trustees  shall  give  Security ;  and  when  be  discharged  or  removed. 

Where  a  trustee  is  insolvent,  the  Court  of  Chancery  will  compel  him 
to  give  security  before  he  shall  enter  upon  the  trust. 

Carth.  458,  The  King  v.  Raines. 

One  trustee  was  decreed,  at  his  own  request,  to  release  to  the  other  and 
his  heirs  his  trust,  and  that  the  other  should  sell  the  premises  devised  to 
be  sold. 

Fin.  R.  380,  Travell  v.  Danvers,  Meers  and  Holbetch. 

Likewise,  a  trustee  was  removed  out  of  the  trust,  though  much  against 
his  will. 

2  Chan.  Ca.  130,  Uvedale  v.  Ettrick. 

||  On  motion  to  dismiss  a  trustee  and  release  him,  inquiry  must  be  made 
"before  the  Master,  whether  he  remains  accountable  for  any  acts  done  as 
trustee ;  and  if  not,  to  prepare  a  release. 

v.  Osborn,  G  Ves.  jun.  455  ;  and  see  4  Russell,  272.  || 

)3  The  court  removed  a  trustee,  become  bankrupt,  although  he  had  ob- 
tained his  certificate,  but  without  prejudice  to  any  interest  he  might  claim 
under  the  will  appointing  him. 

Bainbridge  v.  Blair,  1  Beav.  495. £f 

(M)  The  Power  j3and  Rights  of  Cestui  que  trust. 

Cestui  que  trust  hath  jus  habendi  and  jus  disponendi  ;  and  though  in  law 
he  hath  neither  jus  in  re,  nor  jus  ad  rem,  yet  in  equity  he  hath  both. 

Mod.  38,  Smith  v.  Wheeler,  1  Rep.  121  b,  Chudleigh's  case. So  where  he  is 

eestui  que  trust  of  a  possibility.  Mo.  806,  pi.  1093,  Cole  v.  Moore. — But  cestui  que  trust 
of"  a  surplus  has'  but  a  bare  possibility,  and  cannot  sell.  Chan.  Ca.  208.  Arg.  Lord 
Cornbury  v.  Middlcton. — Unless  the  trustees  are  parties.  Chan.  Ca.  175,  Backhouse 
v.  Middleton. — Any  disposition  by  cestui  que  trust  is  binding  upon  the  trustee  in  a  court 
of  equity,  and  even  at  law.  Chan.  Prec.  415.  /3The  cestui  que  trust  may  sell  and  con- 
vey the  "trust-estate,  as  well  as  any  other  estate.  Elliott  v.  Armstrong,  2  Blackf.  198. 
But  see  Waggener  v.  Waggener,  3  Moor,  545. gf 

Cestui  que  trust  of  a  personal  estate  may  sue  in  Chancery  to  have  an 
account  against  the  executor  or  administrator  ;  and  at  the  same  time  in 
the  Prerogative  Court,  to  enforce  them  to  bring  in  an  inventory. 

3  Chan.  R.  72,  Digby  v.  Cornwallis.    pSee  post,  {P).£j 

Likewise,  cestui  que  trust  may  bring  account  against  the  bailiff  ap- 
pointed  by  his  trustee  to  manage  the  estate  of  cestui  que  trust,  after 
such  bailiff  has  accounted  to  the  trustee. 

2  Chan.  Ca.  121,  Pollard  v.  Downes. 

Mortgagor  in  fee,  after  the  mortgage-money  paid,  is  a  cestui  que  trust ; 
and  a  will  of  the  lands,  made  by  such  mortgagor,  before  the  mortgage, 
(notwithstanding  such  mortgage,  and  that  for  want  of  a  re-conveyance 
the  estate  in  law  was  in  the  mortgagee,  and  so  a  verdict  at  law  passes 
against  the  devisee  of  such  mortgagor,)  is  good,  and  not  revoked  by  such 
mortgage,  especially  in  this  case,  where  there  was  no  republication  after 
the  discharge  of  the  mortgage. 

2  Chan.  R.  297,  Hall  v.  Bench. 

It  has  been  held  by  some,  that  even  a  bargain  and  sale  enrolled  by 
cestui  que  trust  of  an  estate-tail  shall  bind  the  issue,  in  regard  that  such 
a  trust  is  not  within  the  statute  de  do?iis. 

1  Vern.  440,  pi.  412,  Carpenter  v.  Carpenter,  alias  Washborne  v.  Downes.  [So,  in 
North  v.  Champernoon,  2  Chan.  Ca.  G4,  it  is  said  by  Lord  Chancellor  Finch,  that 


USES  AND  TRUSTS.  359 

(N)  Of  Forfeitures  by  Cestui  que  trust. 

tenant  in  tail  of  a  trust  may  bar  his  issue  by  a  feoffment,  or  bargain  and  sale.  Bever- 
ley v.  Beverley,  2  Vern.  131 ;  Baker  v.  Bailey,  Ibid.  225.  It  was  determined  in  Bo- 
water  v.  Elly,  2  Vern.  344,  that  cestui  que  trust,  if  the  trusties  join,  may  bar  the  entail 
by  a  feoffment.  But  in  Legatt  v.  Sewell,  1  P.  Wms.  91,  and  2  Vern.  552,  Lord 
Cowper  intimated  a  doubt,  "  whether  only  a  deed,  executed  by  cestui  que  trust  in  tail, 
should  bar  the  remainder-man,  or  even  the  issue,  in  regard  a  deed  may  be  made  at  a 
tavern  and  by  surprise  ;  but  a  recovery  is  a  solemn  and  deliberate  act."  And  indeed 
it  seems  to  be  now  settled,  that  the  issue  in  tail  is  not  barred  without  a  recovery 
actually  suffered.  Weale  v.  Lowe,  (cited)  2  Vern.  30G ;  Kirkham  v.  Smith,  Ambl. 
518.]  ||  With  respect  to  copyhold  lands,  where  there  is  no  particular  custom  to  bar 
the  entail  of  the  legal  estate,  it  seems  that  a  mere  devise  by  cestui  que  trust  is  suffi- 
cient to  bar  the  entail  of  the  trust.  See  Otway  v.  Hudson,  2  Vern.  583,  and  Mr. 
Cox's  note  to  Dunn  v.  Green,  3  P.  Wms.  10.  || 

But  a  common  recovery  suffered,  or  a,  fine  levied  by  cestui  que  trust  of 

an  estate-tail,  has  the  same  effect  in  equity  as  it  would  have  at  common 

law,  in  case  the  legal  estate  was  in  him.     Resolved  by  Lord  Chancellor. 

1  Vern.  440,  pi.  412,  Carpenter  v.  Carpenter,  alias  Washborno  v.  Downes.  It  had 
been  doubted,  whether  the  recovery  of  cestui  que  trust  in  tail,  with  the  remainder  to 
another  in  tail,  should  bar  the  remainder,  because  it  was  no  settled  interest  vested  ; 
and  Bridgman,  C.  J.,  was  of  opinion  it  should  not.  But  it  was  referred  to  a  case  and 
the  judges  to  consider  of  it.     Chan.  Ca.  68,  Lord  Digby  v.  Langworth. 

A  tender  to  cestui  que  trust  of  money  due  on  bond,  and  a  refusal,  is  a 

good  plea  to  an  action  of  debt  on  the  bond  made  to  trustee. 

1  Lutw.  577,  Lynch  and  Templeman  v.  Clemence.  ||See  Huish  v.  Philips,  Cro. 
Eliz.  755  ;  and  ante,  tit.  Tender  (E),  and  tit.  Obligations  (D),  3.  And  so  also  it  has 
been  held,  that  the  obligor  in  a  bond  may  set  off  against  the  obligee  a  debt  due  to  the 
obligor  from  the  cestui  que  trust  of  the  bond.  Bottomly  v.  Brook,  1  Term  R.  621,  622  ; 
but  that  this  doctrine  is  not  to  be  extended.  See  Wake  v.  Tinkler,  16  East,  36  ;  and 
see  7  East,  153. || 

£  Slaves  conveyed  in  trust  are  subject  to  execution  for  the  debts  of  ces- 
tui que  trust. 

Jones  v.  Langhorn,  3  Bibb,  453. 

A  cestui  que  trust  may  maintain  an  action  in  his  own  name,  after  the 
purposes  of  the  deed  creating  the  trust  are  satisfied. 
Hopkins  v.  Ward,  6  Munf.  41. 

The  possession  of  the  trustee  is,  in  equity,  the  possession  of  the  cestui 
que  trust. 
Miller  v.  Bingham,  1  Ired.  Eq.  R.  423. 

Where  property,  real  and  personal,  was  devised  in  trust,  the  rents,  issues, 
and  profits  of  which  were  to  be  paid  to  the  cestui  que  trust,  and  a  part  of 
the  real  estate  was  taken  for  a  road,  and  the  damages  recovered  for  such 
taking  were  paid  to  the  trustee.  Held,  that  such  damages  were  not  to  be 
considered  as  income  to  be  paid  to  the  cestui  que  trust,  but  were  a  sub- 
stituted capital,  and  he  was  entitled  only  to  the  interest  arising  from  it. 

Gibson  v.  Cook,  1  Mete.  75.     See  14  Pick.  108 ;  15  Pick.  471. 

The  possession  of  the  cestui  que  trust  cannot,  perhaps,  be  disturbed  by 
the  trustee,  but  this  rule  does  not  apply  to  trusts  raised  by  construction 
merely. 

Starke's  lessee  v.  Smith,  5  Ohio  R.  455. £f 

(N)  Of  Forfeitures  by  Cestui  que  trust. 

Cestui  que  trust  for  years  may  forfeit  his  interest  for  felony,  but  cestui 
que  trust  in  fee  cannot.     Per  Hale,  C.  J. 
Hardr.  467,  Pawlet  v.  The  Attorney-General. 


260  USES  AND  TRUSTS. 

(0)  Compensation  to  Trustees. 

A  trust  of  a  lease  in  gross  shall  be  forfeited  for  felony,  as  the  Earl  of 
Somerset's  case  in  Hob.  Daccomb's  case,  and  Cro.  J.  Babington's  case, 
and  Sir  W.  Raleigh's  case :  but  otherwise  of  a  term  assigned  oyer  to  wait 
on  the  inheritance. 

3  Chan.  R.  36,  37,  5th  Resolution,  Attorney-General  v.  Sands. 

Cestui  que  trust  of  an  estate  for  life  levies  a  fine  ;  it  is  no  forfeiture, 
but  good  by  the  statute  of  1  R.  3,  c.  1,  during  his  own  life ;  and  if  pro- 
clamations pass,  there  needs  no  claim  or  entry  within  five  years. 

Godb.  319,  Sheffield  v.  Radcliff. 

But  cestui  que  trust  in  fee  or  fee-tail  forfeits  the  same  by  attainder  of 
treason,  and  the  estate  is  to  be  executed  to  the  king  in  a  court  of  review 
by  statute  33  H.  8,  27  H.  8,  c.  10. 

3  Ch.  R.  34,  Attorney-general  v.  Sands. 

Where  an  alien  is  cestui  que  trust  of  an  estate,  the  trust  belongs  to  the 
king. 

3  Ch.  R.  35,  Attorney-general  v.  Sands,  cites  Holland's  case. 

If  cestui  que  trust  die  without  heir,  the  land  shall  be  discharged  of  this 
trust ;  as,  if  a  tenant  in  fee  of  a  rent-charge  die  without  heir,  or  be  at- 
tainted of  felony,  the  land  is  discharged. 

3  Ch.  R.  36,  Attorney-general  v.  Sands. 

If  cestui  que  trust  be  indebted  to  the  king,  he  shall  have  execution  of 
this  trust  both  by  the  common  law,  and  the  practice  of  the  Court  of  Ex- 
chequer. 

3  Ch.  R.  35,  Attorney-general  v.  Sands. 

A  fine  with  proclamation  and  non-claim  will  bar  a  trust ;  and  so  it  was 
resolved  in  the  Exchequer ;  and  an  entry  on  the  land  by  a  cestui  que 
trust  is  not  sufficient  claim,  but  it  must  be  a  subpoena.  Per  Lord  Keeper 
Finch. 

1  Chan.  Ca.  268,  Clifford  v.  Ashley. 

If  a  trustee  by  fraud  and  combination  with  the  cestui  que  trust,  endea- 
vour to  evade  any  penal  laiu,  as  the  statute  of  simony,  &c,  under  pretence 
that  a  trust  is  only  cognisable  in  equity,  and  that  equity  should  not  assist 
a  penalty  or  forfeiture :  yet  Chancery  will  aid  remedial  laws,  and  not 
suffer  its  own  notions  to  be  made  use  of  to  elude  any  beneficial  law. 

1  Abr.  Eq.  Ca.  131,  Attorney-general  v.  Hindley. 

j3  (0)  Compensation  to  Trustees. 

Where  the  testator  directed  his  trustees  to  be  allowed  all  expenses, 
and  for  professional  assistance  and  for  loss  of  time,  one  being  a  surveyor, 
superintended  the  sale  of  the  real  estate ;  held  to  be  entitled  to  compen- 
sation for  loss  of  time. 

Willis  v.  Kibble,  1  Beav.  559. 

When  a  solicitor  acts  as  trustee,  he  cannot  charge  for  his  services  ren- 
dered in  his  character  of  solicitor,  unless  there  be  some  special  contract 
authorizing  him  to  make  such  charge. 

Sherwood,  ex  parte,  3  Beav.  338. 

In  New  York,  a  trustee  is  not  entitled  to  commissions  on  sales  of  the 
trust  estate,  nor  to  any  compensation  for  his  care  and  pains  in  executing 
the  trust ;  but  he  is  entitled  to  an  allowance  per  diem  for  his  time,  ex- 
penses incurred  in  travelling,  &c. 

Green  v.  Winter,  1  Johns.  Ch.  27  ;  Manning  v.  Manning,  1  Johns.  Ch.  527. 


USES  AND   TRUSTS.  o61 

(P)  Of  Suits  by  and  against  Trustees  and  Cestuis  que  trust. 

Commissions  allowed  to  a  trustee,  as  a  compensation  for  his  skill  and 
trouble,  are  not  to  be  lessened  or  withheld,  because  of  conduct  in  respect 
of  which  he  had  been  charged  with  interest. 

Winder  v.  Diffendcrffer,  2  Bland,  1G7. 

A  solicitor,  who  is  trustee,  is  not  entitled  to  charge  for  his  professional 
services,  which  must  be  assumed  to  have  been  rendered  in  his  character 
of  trustee ;  but  under  a  contract  properly  entered  into,  he  may  be  en- 
titled to  his  professional  charges. 
In  re  Sherwood,  3  Beav.  338 ;  Moore  v.  Frowd,  3  My.  &  Craig,  45. 

Where  business  relating  to  a  trust-estate  was  transacted  by  two  soli- 
citors in  partnership,  one  of  whom  was  a  trustee  of  the  estate ;  held,  in 
passing  his  accounts,  that  costs  out  of  pocket  could  alone  be  allowed. 

Collins  v.  Corey,  2  Beav.  128. 

A  stipulation  by  a  trustee  for  compensation  for  his  personal  services, 
includes  all  his  expenses,  whether  fixed  or  contingent,  but  excludes  a 
compensation  for  services,  if  it  would  be  improper  otherwise  to  allow  any. 

M'Millen  v.  Scott,  1  Monr.  151. 

On  his  assuming  the  trust,  a  trustee  is  not  justly  entitled  to  an  allow- 
ance by  way  of  commission,  but  he  may  be  allowed,  as  a  compensation 
for  his  services,  a  commission  on  the  net  income  of  the  property  which 
he  holds  in  trust  after  he  has  collected  such  income. 

Dixon  v.  Homer,  2  Mete.  420  ;  Langley  v.  Hall,  11  Pick.  120. 

Commissions  may  be  allowed  in  a  trustee's  account,  in  addition  to  an 
allowance  of  specific  charges  for  services,  provided  the  whole  does  not 
exceed  a  just  compensation  ;  such  compensation  being  considered  for  ser- 
vices not  specifically  charged. 

Rathbun  v.  Collon,  15  Pick.  471. 

The  usage  which  exists  among  merchants,  factors,  and  others,  who  un- 
dertake to  manage  the  interests  or  concerns  of  others,  and  the  highest 
rate  at  which  such  services  are  usually  paid  for,  is  the  rule  which  ought 
to  be  followed  in  allowing  commissions  to  trustees. 
Barrell  v.  Joy,  16  Mass.  221. 

In  Maryland,  by  an  equitable  construction  of,  and  by  analogy  to  the 
statutes  of  that  state,  allowing  commissions  to  executors,  guardians,  and 
trustees,  under  judicial  sales,  commissions  may  be  allowed  to  conventional 
trustees,  though  there  was  no  agreement  between  the  parties  to  that  effect. 

Ringgold  v.  Ringgold,  1  Har.  &  Gill,  11. 

In  Pennsylvania,  under  the  equity  of  the  act  which  allows  commissions 

to  executors,  trustees  are  also  entitled  to  claim  them. 

Provost  v.  Gratz,  3  Wash.  C.  C.  R.  434 ;  Burr  v.  M'Evren,  1  Bald.  154.     See  as  to 
the  amount  allowed,  Nathan  v.  Morris,  4  Whart.  389. 

(P)  Of  Suits  in  Equity  and  Actions  at  Law  by  and  against  Trustees  and  Cestuis  que 

trust. 

A  trustee  and  cestui  que  trust  may  properly  unite  as  complainants 
in  a  bill  to  recover  the  trust  fund. 
Jennings'  Executors  v.  Davis,  5  Dana,  128. 

A  trust  fund  must  be  reached  by  a  suit  against  the  trustees,  not  against 
the  cestui  que  trust. 
Thomas's  Trustees  v.  Brashear,  4  Monr.  68. 


262  USES   AND  TRUSTS. 

(Q)  Miscellaneous  Cases. 

Where  there  is  a  trust-estate,  the  trustee  is  answerable  for  damages, 
as  on  an  implied  assumpsit,  to  the  cestui  que  trust,  that  he  would  execute 
the  trust. 

Newhall  v.  Wheeler,  7  Mass.  189. 

The  cestui  que  trust  of  a  mortgage  cannot  maintain  an  action  for  pos- 
session of  the  land  mortgaged. 

Sommes  v.  Skinner,  16  Mass.  348. 

Although  a  cestui  que  trust,  after  a  trust  is  satisfied,  may  maintain 
ejectment,  that  does  not  deprive  the  trustee,  holding  the  legal  title,  of  his 
right  to  maintain  such  action. 

Hopkins  v.  Stephens,  2  Rand.  422. 

A  cestui  que  trust,  who  has  paid  the  consideration  of  lands  conveyed, 
may  claim  the  benefit  of  a  resulting  trust,  and  he  will  be  considered  as 
holding  the  legal  estate  so  far  as  to  be  enabled  to  maintain  or  defend  an 
action  of  ejectment. 

North  Hampstead.  v.  Hampstead,  2  Wend.  109. 

In  law,  trustees  constitute  but  one  person ;  they  must,  therefore,  join 
in  bringing  an  action. 

Brinkerhoof  v.  Wemple,  1  Wend.  470. 

As  a  general  rule,  the  cestuis  que  trust  should  be  made  parties,  more 
especially  when  they  are  to  be  divested  of  title. 

Piat  v.  Oliver,  2  M'Lean,  267. 

The  o-rantee  of  a  cestui  que  trust  filed  a  bill  against  the  trustee  to  ob- 
tain the  legal  title ;  held,  that  the  grantor  need  not  be  a  party  either  as 
complainant  or  defendant. 

Elliott  v.  Armstrong,  2  Blackf.  198. 

A  trustee  may  maintain  ejectment  in  his  own  name ;  and  a  third  per- 
son cannot  set  up  the  title  of  the  cestui  que  trust  to  defeat  the  recovery. 

Chahoon  v.  Hollenbach,  16  S.  &  R.  425. 

In  Pennsylvania,  the  cestui  que  trust  may  bring  ejectment  in  his  own 
name. 

Kennedy  v.  Fury,  1  Dall.  72. 

(Q)  Miscellaneous  Cases. 

A  corporation  aggregate  is  capable  of  taking  and  holding  property 

as  a  trustee. 

Phillips'  Academy  v.  King,  12  Mass.  546 ;  Sutton  v.  Coal,  3  Pick.  232 ;  Amherst 
Academy  v.  Cowles,  6  Pick.  427  ;  Vidal  v.  Girard's  Executors,  2  How.  S.  C.  Rep. 
127. 

When  a  will  directs  acts  to  be  done  which  necessarily  require  the  in- 
tervention of  a  trustee  to  hold  the  property,  the  executor  is  trustee  by 
necessary  implication. 

Nash  v.  Cutler,  19  Pick.  67.  See  8  Pick.  464 ;  9  Pick.  395  ;  13  Pick.  328  ;  6  Mass. 
37;  15  Mass.  113. 

When  one  is  authorized  and  required  to  take  an  obligation  to  himself 
for  the  use  and  benefit  of  another,  and  no  mode  of  proceeding  is  pre- 
scribed, it  is  the  intention  of  the  legislature  that  the  obligee  shall  be 
deemed  a  trustee  for  the  party  interested,  and  be  liable  accordingly. 

Crane  v.  Keating,  13  Pick.  339. 


USES   AND    TRUSTS.  263 

(Q)  Miscellaneous  Cases. 

A  purchaser  under  a  deed  of  trust  can  hold  only  subject  to  the  stipu- 
lations and  conditions  contained  in  such  deed. 
Payne  v.  "Webster,  1  Verm.  101. 

A  trustee  cannot  alien  the  trust  fund  in  payment  of  his  own  debts. 
Graff  v.  Castleman,  5  Rand.  195. 

When  a  trustee  is  obliged  to  employ  an  agent,  and  does  so  in  good 
faith,  he  is  not  responsible  for  any  loss  of  the  trust  fund,  arising  from 
the  subsequent  insolvency  of  the  agent. 

Potts  v.  Trotter,  2  Dev.  Eq.  281. 

Where  a  trust  of  land  is  wholly  nominal,  the  trust  becomes  executed 
in  the  cestui  que  trust,  and  he  may  maintain  ejectment  for  the  recovery 
of  the  lands  in  his  own  name,  without  a  previous  conveyance  from  the 
trustee. 

Welch  v.  Allen,  21  Wend.  147. 

Courts  of  law  will  protect  the  rights  of  a  cestui  que  trust,  against  any 

person  having  notice  of  the  trust. 

Anderson  v.  Van  Alen,  12  Johns.  343  ;  Stiver  v.  Stiver,  8  Ohio,  217.  See  Harris- 
burg  Bank  v.  Tyler,  3  Watts  &  S.  373 ;  Lee  v.  Tiernian,  Addis.  349 ;  Scott  v.  Galla- 
her,  14  S.  &  R.  333. 

Whenever  the  trust  fund  is  converted  into  some  other  species  of  pro- 
perty, it  is  liable  in  its  new  form  to  the  cestui  que  trust,  if  its  identity 
can  be  traced.  In  such  case  the  cestui  que  trust  may  exercise  his  option 
either  to  take  the  property  or  pursue  some  other  remedy. 

Piatt  v.  Oliver,  2  M'Lean,  267. 

Under  the  common  law,  the  trustees  charged  with  collecting  the  in- 
terest on  a  bond,  on  the  insolvency  of  the  obligor,  have  a  right  to  ex- 
change the  bond  for  the  note  of  a  third  person,  especially  if  the  cestui 
que  trust  sanction  the  transaction. 

Morgan  et  al.  v.  Their  Creditors,  6  Mart.  N.  S.  415. 

The  clause  in  a  deed  of  trust  regarding  the  consideration,  is  to  prevent 
a  resulting  trust  in  the  grantor,  and  to  estop  him  for  ever  from  denying 
the  deed  for  the  uses  therein  mentioned. 

Belden  v.  Seymour,  8  Conn.  304. 

When  the  trust  is  for  the  payment  of  debts  generally,  a  purchaser 
under  the  trustee  is  not  bound  to  see  to  the  application  of  the  purchase- 
money,  although  he  has  notice  of  such  debts. 

Grant  v.  Hook,  13  S.  &  R.  262.     See  Bruch  v.  Lantz,  2  Rawle,  417.0 


264 


USURY. 


Usury,  in  a  strict  sense,  is  a  contract  upon  the  loan  of  money  to  give 
the  lender  a  certain  profit  for  the  use  of  it  upon  all  events,  -whether  the 
borrower  make  any  advantage  of  it,  or  the  lender  suffer  any  prejudice 
for  the  want  of  it,  or  whether  it  be  paid  on  the  day  appointed  or  not. 

1  Hawk.  P.  C.  c.  82,  $  1.  /3  Usury  is  the  illegal  profit  which  is  required  and  re- 
ceived, by  the  lender  of  a  sum  of  money,  from  the  borrower  for  its  use.  Bouv.  L.  D. 
h.  v.0 

And  in  a  larger  sense  it  seemeth,  that  all  undue  advantages  taken  by 
a  lender  against  a  borrower,  came  under  the  notion  of  usury,  whether 
there  were  any  contract  in  relation  thereto,  or  not ;  as,  where  one  in 
possession  of  land,  made  over  to  him  for  the  security  of  a  certain  debt, 
retains  his  possession  after  he  has  received  all  that  is  due  from  the 
profits  of  the  land. 

1  Hawk.  P.  C.  c.  82,  \  2. 

The  consideration  of  this  offence  may  be  reducible  to  the  following 
heads,  wherein  we  shall  inquire, 

(A)  Of  Usury  at  Common  Law. 

(B)  Of  Usury  by  the  Statute  Law. 

(C)  What  Kinds  of  Agreements  or  Contracts  shall  be  deemed  usurious,  and  what 

not. 

(D)  What  Kind  of  Hazard  or  Casualty  will  bring  an  Agreement,  &c,  out  of  the 

Statute  of  Usury. 

(E)  In  what  Cases  Securities  shall  be  forfeited  or  avoided  on  account  of  Usury. 

(E)  In  what  Cases  a  Forfeiture  or  Treble  Value  shall  be  incurred  on  account  of 
Usury. 

(G)  In  what  Cases  Relief  is  given  against  usurious  Contracts. 

(II)  How  far  Sureties  are  affected  by  usurious  Contracts. 

(I)  What  Informations  will  lie  in  Cases  of  Usury,  and  where  they  are  good,  and 
where  not. 

(K)  Of  the  Pleadings  in  Cases  of  Usury. 

(L)  Of  the  Trial  and  Evidence  in  Cases  of  Usury. 


(A)  Of  Usury  at  Common  Law. 

Anciently  it  was  holden  to  be  absolutely  unlawful  for  a  Christian  to 
take  any  kind  of  usury,  and  that  whosoever  was  guilty  of  it  was  liable  to 
be  punished  by  the  censures  of  the  church  in  his  lifetime ;  and  that  if  after 
death  any  one  was  found  to  have  been  a  usurer  while  living,  all  his  chat- 
tels were  forfeited  to  the  king,  and  his  lands  escheated  to  thelord  of  the  fee. 

Hawk.  P.  G.  c.  82,  §  4.  But  per  Hale,  C.  J.,  Jewish  usury,  being  40  per  cent,  and 
more,  was  prohibited  at  common  law,  but  no  other.  Ilardr.  420,  Anon.  ||  Lord  Coke 
lays  it  down  that  by  the  effect  of  the  statutes  37  H.  8,  and  13  Eliz.  the  common  law 
as  to  usury  is  done  away.    3  Inst.  152.    See  this  opinion  controverted  at  length,  Plow- 


USURY.  265 

(B)  Of  Usury  by  the  Statute  Law. 

den  on  Usury,  p.  1,  c.  11,  where  see  somo  information  on  the  ancient  state  of  the  law 
as  to  usury  by  Jews  and  by  Christians,  and  as  to  Judaism  in  England  generally  ;  and 
see  Ibid.  Append.  || 

Also,  it  seemeth  to  have  been  the  opinion  of  the  makers  of  some  acts 
of  parliament,  as  5  Ed.  6,  c.  20 ;  13  Eliz.  c.  8,  §  5,  and  21  Jac.  1,  c.  IT, 
§  5,  that  all  kinds  of  usury  are  contrary  to  a  good  conscience. 

Hawk.  P.  C.  c.  82,  §  5. 

And  agreeably  thereto  it  seemeth  formerly  to  have  been  the  general 
opinion,  that  no  action  could  be  maintained  on  any  promise  to  pay  any 
kind  of  use  for  the  forbearance  of  money,  because  that  all  sueh  contracts 
were  thought  to  be  unlawful,  and,  consequently,  void. 

Hawk.  P.  C.  c.  82,  §  6. 

But  it  seemeth  to  be  generally  agreed  at  this  day,  that  the  taking  of 
reasonable  interest  for  the  use  of  money  is  in  itself  lawful,  and,  conse- 
quently, that  a  covenant  or  promise  to  pay  it,  in  consideration  of  the  for- 
bearance of  a  debt,  will  maintain  an  action ;  for  why  should  not  one  who 
has  an  estate  in  money  be  as  well  allowed  to  make  a  fair  profit  of  it  as 
another  who  has  an  estate  in  land  ?  And  what  reason  can  there  be,  that 
the  lender  of  money  should  not  so  well  make  an  advantage  of  it  as  the 
borrower  ?  Neither  do  the  passages  in  the  Mosaical  law,  which  are  gene- 
rally urged  against  the  lawfulness  of  all  usury,  if  fully  considered,  so 
much  prove  the  unlawfulness  as  the  lawfulness  of  it ;  for  if  all  usury  was 
against  the  moral  law,  why  should  it  not  be  as  much  in  respect  of  foreign- 
ers, of  whom  the  Jews  were  expressly  allowed  to  take  it,  as  in  respect 
of  those  of  the  same  nation,  of  whom  alone  they  were  forbidden  to  re- 
ceive it  ?  From  whence  it  seems  clearly  to  follow,  that  the  prohibition 
of  it  to  that  people  was  merely  political,  and,  consequently,  doth  not  ex- 
tend to  any  other  nation. (a) 

Hawk.  P.  C.  c.  82,  \  7.  \\(a)  And  such  was  the  opinion  of  Grotius  and  Puffendorf, 
who  have  treated  the  subject  at  length.  For  a  full  statement  of  the  reasonings  on  the 
question,  whether  receiving  interest  for  money  is  against  conscience  and  natural  law, 
and  for  a  refutation  of  the  old  and  vulgar  errors  which  held  it  to  be  so,  see  Grotius  de 
Jure  B.  et  P.  lib.  xi.  c.  xii.  |  20.  Puffendorf,  Droit  de  la  N.  lib.  v.  chap.  vii.  §  8,  9, 
10.  Rutherforth's  Instit.  N.  L.  b.  i.  c.  xiii.  The  passage  in  St.  Luke,  c.  xix.  v.  22, 
"  Wherefore  then  gavest  thou  not  thy  money  into  the  bank,  that  at  my  coming  I  might 
have  required  mine  own  with  usury?"  (and  see  St.  Matt.  c.  xxv.  v.  27,)  seems  to 
show  that  the  usage  existed  at  Jerusalem  of  placing  money  at  interest  in  the  bands  of 
bankers,  and  was  not  deemed  unlawful.  The  old  statutes,  legalizing  interest  at  certain 
rates,  bear  witness  to  the  violent  prejudices  against  the  practice.  The  statute  13  Eliz. 
c.  8,  which  allows  10  per  cent,  interest,  recites,  "  that  all  usury  being  forbidden  by  the 
law  of  God  is  sin,  and  detestable  ;"  and  the  21  Jac.  1,  reducing  the  rate  to  8  per  cent., 
provides,  that  "  nothing  in  the  law  shall  be  construed  to  allow  the  practice  of  usury 
in  point  of  religion  or  conscience."  Rolle  says,  that  this  clause  was  introduced  to 
satisfy  the  bishops,  who  would  not  pass  the  bill  without  it.  Oliver  v.  Oliver,  Roll.  II. 
Calvin  and  St.  Thomas  Aquinas  both  agree  that  the  receipt  of  usury  is  not  contrary 
to  Scripture.  Calv.  Epist.  de  Usura ;  St.  Thomas  Aqu.  Op.  de  Usur.  c.  4.  See  the 
question  as  to  the  policy  of  laws  regulating  the  rate  of  interest  discussed  with  inge- 
nuity and  clearness  by  Mr.  Bentham.  "  Defence  of  Usury,  showing  the  Impolicy  of 
the  present  Legal  Restraints,"  1818.  || 

(B)  Of  Usury  by  the  Statute  Law. 

By  the  37  H.  8,  c.  9,  and  the  13  Eliz.  c.  1,  the  rate  of  interest  is  not 
to  exceed  10?.  in  the  100?.     By — 

The  21  Jac.  1,  c.  17,  §  2,  None  shall  upon  any  contract,  directly  or  in- 
directly, take  for  the  loan  of  any  money,  or  other  commodities,  above  the 

Vol.  X.— 34  Z 


266  USURY. 

(B)  Of  Usury  by  the  Statute  Law. 

rate  of  81.  for  1001.  for  one  whole  year,  in  pain  to  forfeit  the  treble  value 
of  the  money,  or  other  things  lent. 

§  5.  This  law  shall  not  be  construed  to  allow  the  practice  of  usury  in 
point  of  religion  or  conscience. 

By  the  12  Car.  2,  c.  13,  §  2,  None  shall  take,  directly  or  indirectly, 
for  the  loan  of  money,  or  other  commodities,  above  the  value  of  61.  for  the 
forbearance  of  1001.  for  one  year,  and  so  after  that  rate,  and  all  bonds,  con- 
tracts, 8fc,  whereupon  more  shall  be  reserved,  shall  be  void.  They  that  re- 
ceive more,  shall  forfeit  the  treble  value  of  the  money  or  other,  things  lent. 

12  Car.  2,  c.  13,  §  2.  A  mortgage  was  made  at  SI.  per  cent,  before  the  malting  of  this 
statute,  reducing  interest  to  61.  per  cent.  The  mortgagor  continued  paying  interest  of  SI. 
per  cent,  for  fifteen  years  after  this  statute,  and  then  the  mortgagee  entered.  The  mort- 
gagor brought  a  bill  to  redeem.  The  question  was,  Whether  the  21.  per  cent,  received 
for  the  fifteen  years  should  not  be  allowed  in  discharge  of  so  much  principal  ?  The 
court  denied  relief  as  to  the  money  paid  by  the  plaintiff;  but  decreed  61.  per  cent,  only, 
to  be  allowed  from  the  defendant's  entry  on  the  estate.     2  Vern.  42,  pi.  37,  Walker 

v.  Peury. On  a  rehearing,  the  decree  was  confirmed  as  to  the  21.  per  cent.    Ibid.  78, 

pi.  73.  Lord  C.  Jefferies  having  been  of  opinion,  that  the  statute  had  no  retrospect  be- 
yond 1660,  but  looked  forwards  to  contracts  and  agreements  then  after  to  be  made, 
and  not  to  any  contracts  and  agreements  before  that  time,  and  having  decreed  account 
to  be  taken  accordingly  as  above,  now  upon  the  bill  of  review,  Lord  Commissioner 
Trevor,  because  there  was  a  decree  already  made  in  it,  would  not  reverse  it ;  but 
Lords  Commissioners  Itawlinson  and  Hutchins,  on  reading  the  act  of  parliament,  held 
the  act  had  a  retrospect,  and  makes  it  unlawful  to  take  more  than  61.  per  cent.,  upon 
any  contracts  whether  made  before  or  after  the  act  of  parliament ;  but  that  part  of  the 
statute  which  adds  penalties,  relates  only  to  contracts  and  agreements  then  after  to  be 

made.     2  Vern.  145,  146,  pi.  141 ;  Walker  v.  Penry. Abr.  Eq.  Ca.  288,  (D,)  pi.  1, 

cites  2  Vern.  145,  S.  C.  And  adds,  that  Rawlinson  and  Hutchins,  Lords  Commis- 
sioners, held  the  decree  should  be  reversed  against  Lord  Trevor.  ||  As  to  the  question, 
whether  the  statute  should  have  a  retrospective  effect,  see  tit.  Statute,  (C.)|| 

But  the  12  Ann.  stat.  2,  c.  16,  enacts,  That  no  person  upon  any  contract, 

which  shall  be  made  after  the  29th  of  September,  1714,  shall  take  for  loan 

of  any  money,  ivares,  fyc,  above  the  value  of  51.  for  the  forbearance  of  1001. 

for  a  year  ;  and  all  bonds  and  assurances  for  payment  of  any  money  to 

be  lent  upon  usury,  whereupon  or  whereby  there  shall  be  reserved  or  taken 

above  five  in  the  hundred,  shall  be  void ;  and  every  person  which  shall 

receive,  by  means  of  any  corrupt  bargain,  loan,  exchange,  chevisance, 

shift,  or  interest  of  any  ivares,  other  things,  or  by  any  deceitful  way,  for 

the  forbearing  or  giving  day  of  payment  for  one  year,  for  their  money 

or  other  things,  above  51.  for  1001.,  for  a  year,  $c,  shall  forfeit  treble  the 

value  of  the  moneys  or  other  things  lent. 

It  seems  to  be  now  settled,  that  the  statute  of  12  Ann.  c.  16,  which  reduces  the 
money  to  51.  per  cent.,  has  not  a  retrospect  to  any  debts  contracted  before  ;  but  that 
they  should  carry  interest  according  to  the  interest  allowed,  or  agreement  made  at 
the  time  of  the  debt  contracted.  And  Serjeant  Hawkins,  from  the  expositions  made 
of  former  statutes,  says  that  a  contract  made  before  the  statute  is  no  way  within  the 
meaning  of  it,  and  therefore  it  is  still  lawful  to  receive  61.  per  cent,  in  respect  of  any 
such  contract.     Hawk.  P.  C.  c.  82,  \  10. 

The  expositions  which  have  been  made  of  the  former  statutes  being 
very  applicable  to  the  last,  which  is  almost  in  the  same  words,  the  pro- 
per construction  of  it  will  be  best  collected  by  a  due  attention  to  the  fol- 
lowing heads. 

[By  st.  3  G.  1,  c.  8,  §  39,  The  Governor  and  Company  of  the  Bank 
of  England  are  enabled  to  borrow  money  at  such  rate  of  interest  as  they 
may  think  fit,  although  the  same  may  happen  to  exceed  the  interest  al- 
lowed by  law  to  be  taken. 


USURY.  o67 

(B)  Of  Usury  by  the  Statute  Law. 

||  By  3  G.  1,  c.  9,  §  16,  the  same  liberty  is  given  to  the  South  Sea 
Cornpany.il 

It  is  declared  by  14  G.  3,  c.  79,  that  all  mortgages  and  other  assurances 
of  lands,  and  their  assignments  or  transfers,  in  Ireland  and  the  plantations, 
for  securing  money  already  executed  in  Great  Britain,  shall  be  as  valid  as 
if  executed  on  the  mortgaged  lands,  and  shall  continue  to  carry  interest  at 
the  rate  allowed  of  by  the  laws  of  the  colony  where  the  mortgaged  lands 
lie  :  but  as  to  future  loans,  the  act  limits  them  to  61.  per  cent.,  and  pro- 
vides against  fraud  by  confining  the  loan  to  the  real  value  of  the  lands,  &c. 
It  likewise  gives  treble  forfeiture  of  the  sum  borrowed  beyond  the  value 
of  the  land  mortgaged  ;  and,  for  greater  notoriety  and  certainty,  requires 
all  such  mortgages  or  transfers  to  be  registered  in  the  country  where  the 
lands  lie,  else  to  remain  liable  to  the  12th  of  Anne. 

This  act  relates  only  to  mortgages  and  other  securities  relating  to  lands  in  Ireland 
and  the  West  Indies,  but  does  not  extend  to  personal  contracts.  Dewar  v.  Span,  3 
Term  R.  425.] 

||  An  act  (1  and  2  G.  4,  c.  51)  was  passed  to  explain  the  above  act  of 
14  G.  3,  c.  79.  But  the  1  and  2  G.  4,  c.  51,  is  now  repealed  by  the  3 
G.  4,  c.  47,  except  as  far  as  regards  any  mortgages  or  securities  executed 
before  the  passing  of  this  last-mentioned  act. 

And  by  3  G.  4,  c.  47,  §  2,  it  is  enacted  that  all  mortgages  and  securi- 
ties already  made  or  to  be  made  in  Great  Britain  of  any  lands,  tenements, 
or  hereditaments,  slaves,  cattle,  or  other  things  being  in  Ireland  or  any  of 
the  colonies  in  the  West  Indies,  for  securing  payment  of  any  money  thereon 
lent  and  advanced,  with  interest  for  the  same,  whether  payable  in  Great 
Britain  or  in  the  country,  island,  &c,  where  the  lands,  &c,  comprised  in  such 
mortgage  are  situate,  and  also  all  conveyances,  demises,  or  other  assurances 
of  any  lands,  &c.,  in  Ireland  or  any  of  the  colonies,  and  all  bonds  and  co- 
venants made  or  to  be  made  or  entered  into  in  Great  Britain  either  by  the 
person  borrowing  such  money,  or  by  any  person  residing  in  Great  Britain 
or  elsewhere,  whether  made  by  way  of  collateral  security  for  payment  of 
such  interest,  or  for  securing  the  payment  of  interest  on  the  money  so  ad- 
vanced at  any  higher  rate  than  the  rate  of  interest  which  such  securities 
bear  or  carry,  and  whether  such  collateral  or  other  securities  for  such  inte- 
rest have  been  made  or  shall  be  made  and  entered  into  at  the  time  of  mak- 
ing such  mortgages  or  securities,  or  at  any  time  subsequent  thereto,  and 
whether  the  same  shall  be  made  to  the  original  mortgagees  or  their  repre- 
sentatives, or  to  any  person  to  whom  such  mortgages,  &c,  have  been 
assigned,  and  all  transfers  and  assignments  made  or  to  be  made  in  Great 
Britain  of  such  mortgages,  securities,  demises,  bonds,  &c,  shall  be  as 
good,  valid,  and  effectual  as  such  mortgages,  securities,  &c,  would  have 
been  if  the  same  had  been  respectively  made  or  entered  into,  and  the 
interest  secured  thereby  had  been  made  payable,  and  the  person  making 
such  assurances,  bonds,  &c,  for  securing  such  interest  or  additional  inte- 
rest as  aforesaid,  had  resided  in  the  country,  island,  &c,  where  the  lands, 
&c.,  comprised  in  such  mortgage,  &c,  lie  or  are ;  and  none  of  His  Ma- 
jerty's  subjects  shall  be  liable  to  the  penalties  of  the  act  of  Queen  Anne 
for  receiving  interest  for  the  sums  lent  on  any  such  mortgage,  &c,  so  as 
the  total  amount  of  the  interest  so  received  do  not  exceed  the  rate  allowed 
by  the  law  of  the  country,  island,  &c.,  where  the  lands,  &c,  comprised 
in  such  mortgage,  &c,  severally  lie  or  are.|| 


268  USURY. 

(C)  What  Kinds  of  Agreements  or  Contracts  shall  be  deemed  usurious,  and  whatnot. 

It  hath  been  resolved,  that  an  agreement  to  pay  double  the  sum  bor- 
rowed, or  other  penalty  on  the  non-payment  of  the  principal  debt  at  a  cer- 
tain day,  is  not  usurious,  because  it  is  in  the  power  of  the  borrower  wholly 
to  discharge  himself,  by  repaying  the  principal  according  to  the  bargain. 

Hawk.  P.  C.  c.  82,  g  3. 

{A  contract  to  pay  a  larger  sum  at  a  future  day  upon  non-payment  of 
the  sum  agreed  upon  at  a  prior  day  is  not  usurious,  but  the  increased  sum 
will  be  considered  as  a  penalty,  and  relievable  against  in  a  court  of  equity 
upon  compensation  being  made ;  and  that  compensation  is  legal  interest, 
unless  some  specific  damage  can  be  shown. 

1  Wash.  1,  Groves  v.  Graves;  Ibid.  119,  Winslow  v.  Dawson.} 

But,  if  it  were  originally  agreed,  that  the  principal  money  should  not  be 
paid  at  the  time  appointed,  and  that  such  clause  were  inserted  only  with 
an  intent  to  evade  the  statute,  the  whole  contract  is  void ;  for  the  construc- 
tion of  cases  of  this  nature  must  be  governed  by  the  circumstances  of 
the  whole  matter,  from  which  the  intention  of  the  parties  will  appear  in 
the  making  of  the  bargain,  which,  if  it  was  in  truth  usurious,  is  void, 
however  it  may  be  disguised  by  a  specious  assurance. 

Hawk.  P.  C.  c.  82,  \  19. 

So,  if  both  principal  and  interest  be  secured,  yet,  if  it  be  at  the  will  of 
the  party  who  is  to  pay  it,  it  is  no  usury ;  per  Doddridge,  J.  As,  if  I  lend 
to  one  100?.  for  two  years,  to  pay  for  the  loan  thereof  80?.,  and  if  he  pay 
the  principal  at  the  year's  end,  he  shall  pay  nothing  for  interest,  this  is 
not  usury ;  for  the  party  has  his  election,  and  may  discharge  himself  by 
paying  it  at  the  first  year's  end. 
Cro.  Ja.  509,  pi.  20,  Roberts  v.  Trenayne. 

But,  if  a  man  contracts  to  pay  more  interest  than  the  statute  allows,  if 
the  plaintiff  requires  it,  though  the  plaintiff  never  does  require  it,  yet  it 
is  within  the  statute  of  usury.(a) 

Vent.  234,  Hedgeborough  v.  Rofenden.  (a)  It  has  been  held,  that  an  assurance  for 
the  payment  of  fifty  shillings  for  the  use  of  1001.  for  six  months,  the  computation 
shall  be  by  calendar  and  not  by  lunar  months,  because  by  the  latter  the  interest  would 
exceed  the  rate  allowed  by  the  statute.     Hawk.  P.  C.  c.  82,  g  13. 

Nevertheless  it  has  been  held,  that  if  one  contracts  to  have  more  than 
the  statute  allows,  but  he  takes  nothing  of  the  interest  contracted  for,  he 
is  not  punishable  by  the  statute ;  but  if  he  takes  any  thing,  if  it  be  but 
a  shilling,  it  is  an  affirmance  of  the  contract,  and  he  shall  render  for  the 
whole  contract. 

Mallory  v.  Bird,  cited  in  Pollard  v.  Scoly,  Cro.  Eliz.  26. 
So,  if  I  lend  100?.  without  any  contract  for  interest,  and  afterwards  at 
the  end  of  the  year  the  borrower  gives  me  20?.  for  the  loan  thereof,  the 
same  is  within  the  statute ;  for  my  acceptance  makes  the  offence  without 
any  contract  or  bargain.     Per  Gent,  J. 

Le.  90,  pi.  125,  in  Sir  Woollaston  Dixy's  case. 

Where  a  man  for  100?.  sells  his  land,  upon  condition  that  if  the  vendor 
or-  his  heirs  repay  the  sum  before  the  feast  of  Easter,  or  such  like,  then 
next  following,  that  then  he  may  re-enter,  this  is.no  usury  ;  for  he  may 
repay  the  next  day,  or  any  time  before  Easter,  and  therefore  he  has  no 
gain  certain  to  receive  any  profits  of  the  land. 

Bro.  Usury,  pi.  1.  But,  if  the  condition  bo  that  the  vendor  repay  such  a  da..-,  a 
year,  or  two  years  after,  this  is  usury  ;  for  he  is  sure  to  have  the  land  and  the  rents 
and  profits  for  that  year,  or  for  those  two  years.     Ibid. 'ibid. 


USURY.  o69 

(C)  What  Agreements  or  Contracts  deemed  usurious,  &c. 

But,  where  B  delivered  wares  of  the  value  of  100?.  and  no  more,  and 
took  a  bond,  with  a  condition  to  re-deliver  the  war§g  to  B  within  a  month, 
or  to  fay  120?.  at  the  end  of  the  year,  the  obligation  was  adjudged  void 
by  the  statute  of  usury. 

Mo.  397,  pi.  520,  Reynolds  v.  Clayton,  cites  it  as  adjudged  in  B.  R.  Beclier's  case 

So,  if  A  comes  to  borrow  money,  and  B  says  he  will  not  lend  money, 

but  he  will  sell  com,  &c,  and  give  day  for  payment  at  such  a  rate,  which 

rate  exceeds  10?.  in  the  100?.  it  is  usury. 

Mo.  398,  pi.  520,  cites  it  as  Wick's  case  of  Gloucestershire ;  |3Evans  v.  Negley,  13  S. 
&  R.  218.0 

If  one  gives  the  profits  of  his  lands,  worth  10?.,  for  interest  for  a  year 
of  100?.,  though  he  receives  part  of  the  profits  daily,  this  is  not  usury 
above  10?.  for  the  100?.  Per  Popham,  Gawdy,  and  Yelverton ;  but 
Fenner  3  contra. 

Mo.  644,  pi.  890,  Worley's  case. 

So,  where  one  mortgaged  land  for  100?.  and  took  bond  for  the  interest 
of  81.  a  year,  payable  half-yearly ;  the  question  was,  Whether  that 
makes  the  bargain  usurious  against  the  statute,  because,  as  it  was  insisted, 
the  use  ought  not  to  be  paid  until  the  end  of  the  year,  and  contracting 
to  have  half  of  it  half-yearly,  it  is  not  warrantable  by  the  statute  ?  But 
the  court  held,  that  it  is  not  any  usurious  contract  contrary  to  the  statute, 
because  the  100?.  is  lent  for  a  year,  and  the  reservation  is  not  of  more  than 
what  is  permitted  by  the  statutes  ;(a)  and  the  reserving  it  half-yearly  is 
allowable ;  for  he  does  not  receive  any  interest  for  more  or  less  time  than  his 
money  is  forborne.  It  was  adjudged  for  the  plaintiff,  and  affirmed  in  error. 

Cro.  Car.  283,  Gryfill  v.  Wytchott,  \\{a)  The  21  Jac.  1,  c.  17,  was  then  in  force,  in 
which  81.  per  cent,  is  the  legal  rate.|| 

It  is  to  be  observed,  that  the  loan  of  money  for  interest  allowed  by  the 
statute,  shall  not  be  construed  to  be  within  the  purview  of  it,  in  respect 
of  any  expectations  which  the  lender  may  have  of  a  voluntary  gratuity, 
to  be  given  him  by  the  borrower,  if  there  be  no  kind  of  agreement  re- 
lating to  it. 

Hawk.  P.  C.  c.  82,  g 18 ;  ||but  see  2  Bos.  &  Pul.  381. || 

But  a  contract  reserving  to  the  lender  a  greater  advantage  than  is 
allowed  by  the  statute,  is  equally  within  the  meaning  of  it,  whether  the 
whole  be  reserved  by  way  of  interest,  or  in  part  only  under  that  name, 
and  in  part  by  way  of  rent  for  a  house,  let  at  a  rate  plainly  exceeding 
the  known  value. 
Hawk.  P.  C.  c.  82,  §  22;  [3  Atk.  154 ;  Cowp.  795.] 

||  H  having  taken  a  building  lease  of  land  at  108?.  per  annum,  assigned 
over  the  lease  to  R  for  2300?.,  (the  value  of  the  premises  being  proved  to 
be  about  800?.,)  and  on  the  same  day  agreed  to  take  the  premises  as  tenant 
to  R  and  subject  to  the  same  covenants  as  in  the  building  lease,  but  at  an 
increased  rent  of  395?. ;  and  there  was  a  stipulation  that  II  should  be  at 
liberty,  upon  giving  six  months'  notice,  tore-purchase  the  lease  for  the  sum 
of  2300?.  On  H's  becoming  bankrupt,  his  assignees  brought  an  ejectment 
against  the  tenant,  claiming  under  R,  and  the  learned  judge  left  it  to  the 
jury  to  say  whether  the  transaction  was  substantially  a  purchase,  or  a  loan 
by  R  to  H.  If  they  thought  the  latter,  the  deeds  were  void  for  usury ;  and 
the  jury  having  found  it  the  latter,  the  court  refused  to  disturb  the  verdict. 

z2 


270  USURY. 

(C)  What  Agreements  or  Contracts  deemed  usurious,  &c. 

In  such  cases  it  is  a  question  of  fact  for  the  jury,  whether  the  transaction 
is  bond  fide,  or  a  colour  for  an  usurious  loan. 

Doe  dem.  Grimes  v.  Gooch,  3  Barn.  &  Aid.  G64 ;  and  see  Doe  dem.  Metcalf  v. 
Brown,  Holt's  R.  295  ;  Metcalf  v.  Brown,  5  Price,  560 ;  Doe  v.  Chambers,  4  Camp.  1. 
As  to  cases  where  a  lease  granted  in  consideration  of  a  loan  of  money  is  considered 
usurious,  see  1  Ball.  &  Bea.  116,  125,  129;  1  Scho.  &  Lef.  182;  2  Ibid.  218. 

Where  a  broker  carried  bills  to  be  discounted,  and  allowed  to  the  per- 
son discounting,  interest  at  the  rate  of  5?.  per  cent,  per  annum,  and,  in 
addition,  11.  per  cent,  on  the  amount  of  the  bills  towards  the  payment 
of  a  debt  due  from  a  third  person  to  the  discounter,  but  which  the  broker 
thought  himself  bound  in  honour,  though  not  in  law,  to  pay,  and  the 
broker  accounted  to  his  principal  for  the  whole  amount  of  the  bills,  minus 
lawful  discount  and  commission  ;  it  was  held,  that  the  transaction  was 
not  usurious.  If  the  discounter  of  a  bill  engage  with  the  holder  that  he 
shall  pay  the  agent  procuring  the  discount  a  premium,  in  addition  to  the 
legal  interest,  this  is  usurious,  although  the  discounter  himself  only  take 
the  legal  discount. 

Solarte  v.  Melville,  7  Barn.  &  C.  431 ;  Meagoe  v.  Simmons,  Moo.  &  Malk.  Ca. 
121.|| 

A  bankrupt  having  borroived  a  great  sum  of  money  of  the  defendant  for 
one  quarter  of  a  year,  he  was  to  give  the  defendant  61.  for  every  100?.  that 
he  borrowed;  and  some  silk  being  the  security,  he  was  to  give  him  one 
pound  more  for  every  160?.  for  that  quarter,  for  the  use  of  his  warehouse. 
The  question  upon  the  trial  was,  Whether  this  contract  made  between  the 
bankrupt  and  the  defendant  is  a  usurious  contract?  and  the  jury  having 
found  a  verdict  for  the  defendant,  Serjeant  Cheshire  moved  for  a  new 
trial ;  for  he  said  the  verdict  was  against  law.  Holt,  C.  J.,  said  he  thought 
it  was  a  wrong  verdict,  and  it  was  ordered  to  be  moved  again. 

Holt's  R.  706,  Le  Blanc  et  al.  v.  Harrison. 

[One  broker  had  borrowed  of  another  on  a  note  of  hand  45?.  on  demand, 
to  purchase  certain  goods  that  were  then  on  sale,  on  condition  of  having 
the  future  profits  on  the  re-sale.  The  goods  were  purchased  and  re-sold 
for  5?.  profit,  the  lender  demanded  his  money  within  two  hours  after  the 
lending,  which  made  it  carry  interest ;  and  the  action  was  brought  for 
21.  10s.  over  and  above  the  principal  and  interest :  the  plaintiff  was  non- 
suited :  for  Lord  Mansfield  was  of  opinion,  in  which  the  three  other  * 
judges  concurred,  "  that  the  intention  of  the  contract  was  to  get  more 
than  principal  and  legal  interest  on  the  note,  which  is  usury  within  the 
meaning  of  the  statute." 

Jeston  v.  Brooke,  Cowp.  793. 

The  plaintiffs,  who  were  gold-refiners,  had  advanced  gold  wire  to  others 
in  the  same  trade,  upon  the  terms  of  paying  such  a  price  if  the  money 
were  paid  within  three  months  ;  and  if  not,  then  to  pay  at  the  rate  of  a 
halfpenny  an  ounce  per  month,  over  and  above  the  price  agreed  for ;  which 
in  fact,  upon  calculation,  exceeded  the  rate  of  51.  per  cent.  This  at  the 
trial  was  found  to  be  the  constant  usage  of  the  trade.  A  verdict  was 
given  for  the  plaintiff,  and  a  question  reserved  for  the  opinion  of  the  court, 
Whether  this  contract  was  usury  ?  Under  all  the  circumstances,  especially 
the  constant  usage  of  the  trade,  the  court  was  of  opinion,  that  it  did  not 
amount  to  usury  within  the  statute.  But  though  this  transaction  cannot  be 
considered  as  usury  within  the  statute,  yet  in  a  subsequent  case  under  these 
circumstances,  where  the  defendant  had  paid  into  court  the  principal  and 


USURY.  271 

(C)  What  Agreements  or  Contracts  deemed  usurious,  &c. 

interest  at  5?.  per  cent,  from  the  time  of  the  bargain,  the  court  -would  not 
allow  the  plaintiff  in  an  action  for  money  had  and  received  to  recover  the 
excess  of  interest,  notwithstanding  it  appeared  manifestly  at  the  trial, 
that  such  excess  was  only  to  be  taken  in  case  of  delay  of  payment  at  the 
end  of  three  months,  and  for  no  other  reason  whatever. 
Floyer  v.  Edwards,  Cowp.  112;  Plumbo  v.  Carter,  Ibid.  116.] 

||  Where  a  contract  was  made  for  sale  of  an  estate  at  a  certain  price, 
and  it.  was  agreed  that  this  should  be  paid  by  instalments  at  future  days 
with  interest  at  6?.  per  cent,  per  annum,  and  promissory  notes  were  given 
for  these  sums  compounded  of  the  instalments  and  of  that  which  was 
called  interest,  it  was  held  that  the  whole  must  be  considered  as  the  pur- 
chase-money of  the  estate,  and  that  the  bargain  was  not  usurious. 
Beete  v.  Bidgood,  7  Barn.  &  C.  453.  || 

If  a  sum  of  money  is  given  in  consideration  of  an  annuity,  though  the 
yearly  payment  exceeds  the  rate  of  interest,  yet  it  is  not  usury.     Thus. 

Where  A  asked  to  borroiv  of  B  upon  interest,  and  B  refused  to  lend 
for  interest;  but  said  that  for  rent  or  annuity  he  would  ;  and  so  it  was 
agreed,  and  a  rent  granted  for  twenty-three  years,  amounting  to  no  more 
than  the  statute  allows  for  interest,  &c. ;  it  seems,  that  this  is  not  usury 
within  the  statute. 

And.  121,  pi.  169,  Finch's  case. 

If  A  gives  30?.  to  B,  to  have  an  annuity  of  51.  assured  to  him  for  100 
years,  if  A  and  his  wife  and  four  of  his  children  so  long  shall  live  ;  this 
is  not  within  the  statute  of  usury.  So,  if  there  had  not  been  any  con- 
dition. But  care  is  to  be  taken,  that  there  be  no  communication  of  bor- 
rowing of  any  money  before. 

4  Le.  208,  pi.  334,  Fuller's  case. 

So,  where  A  on  the  17th  of  July,  1579,  lent  100?.  to  B,  who  thereupon 
granted  to  A  and  his  heirs  an  annuity  of  20?.  a  year,  on  condition  that 
if  the  said  B,  the  grantor,  paid  to  A,  at  Christmas  1580,  the  said  1001. , 
that  then  the  annuity  should  cease  ;  adjudged,  this  is  not  within  the  sta- 
tute ;  for  nothing  was  to  be  paid  for  interest  within  a  year  and  a  quarter 
after  the  grant ;  and  if  the  1001.  had  been  paid  on  the  day,  the  annuity 
•  was  to  cease  without  paying  any  thing  ;  so  that  it  is  only  a  plain  bargain. 
and  a  conditional  purchase  of  an  annuity. 

5  Rep.  69,  Burton's  case. 

But,  if  it  had  been  agreed  between  A  and  B,  that  notwithstanding  such 
power  of  redemption,  the  1001.  should  not  be  paid  at  the  day,  and  so  that 
the  clause  of  redemption  tvas  inserted  to  evade  the  statute,  then  this  had 
been  a  usurious  contract  and  bargain  within  the  statute ;  for  if  in  truth 
the  contract  be  usurious  against  the  statute,  no  colours  or  show  of  words 
will  serve,  but  the  party  may  show  it,  and  he  shall  not  be  concluded  or 
estopped  by  any  deed  in  any  other  matter  whatsoever ;  for  the  statute 
gives  averment  in  such  case. 

5  Rep.  69,  Burton's  case. 

Where  A  for  100?.  granted  a  rent  of  20?.  for  eight  years,  another  of 
20?.  a  year  for  two  years,  if  B,  C,  and  D,  should  so  long  live  ;  in  reple- 
vin the  defendant  avowed  for  the  rent,  and  the  plaintiff  pleaded  the  sta- 
tute of  usury,  and  set  forth  the  statute  and  a  special  usurious  contract ; 
it  was  said,  that  if  it  had  been  laid  to  be  upon  a  loan  of  money,  then  it 


272  USURY. 

(C)  What  Agreements  or  Contracts  deemed  usurious,  &c. 

was  usury ;  but  if  it  be  a  bargain  for  an  annuity,  it  is  no  usury ;  but  that 
this  was  alleged  to  be  upon  a  lending. 
Brownl.  180,  Cotterell  v.  Harrington. 

So,  where  in  debt  upon  bond,  the  defendant  pleaded  the  statute  of 
usury,  and  that  he  came  to  the  plaintiff  to  borrow  of  him  120?.  according 
to  the  rate  of  10?.  per  cent.,  zvho  refused  to  lend  the  same,  but  corruptly 
offered  to  deliver  120?.  to  him,  if  he  would  be  bound  to  pay  him  201.  per 
annum,  during  the  plaintiff's  wife's  and  his  sons  lives ;  whereupon  he 
entered  into  a  bond  ;  it  was  resolved,  that  this,  being  an  absolute  bargain, 
in  consideration  of  the  payment  of  20?.  per  annum,  during  two  lives  and 
no  longer,  and  no  agreement  to  have  the  principal  money,  was  out  of  the 
statute  of  usury  ;  but  if  there  had  been  any  provision  for  the  repayment 
of  the  principal,  although  not  expressed  within  the  bond,  it  had  been  a 
usurious  agreement  within  the  statute.  And  judgment  for  the  plaintiff. 
Cro.  Ja.  252,  pi.  7,  Fountain  v.  Grimes ;  Hawk.  P.  C.  c.  82,  \  15,  says,  that  the 
grant  of  an  annuity  for  lives  not  only  exceeding  the  rate  allowed  for  interest,  but  also 
exceeding  the  known  proportion  for  contracts  of  this  kind,  in  consideration  of  a  certain 
sum  of  money,  is  not  within  the  meaning  of  the  statute,  unless  there  were  some 
underhand  bargain  for  the  security  of  the  repayment  of  the  principal  or  consideration 
money.  [And  Mr.  J.  Burnet  in  Chesterfield  v,  Jansen,  2  Ves.  142,  says : — "  Supposing 
there  is  a  purchase  of  an  annuity  at  ever  such  an  under  price,  if  the  bargain  was  really 
for  an  annuity,  it  cannot  be  usury ;  but,  if  the  communication  was  about  borrowing 
and  lending,  it  may  be  usury  within  the  statute :  and  how  ?  If  by  reason  of  all  the 
circumstances  and  the  communication,  the  exility  of  the  sum  given,  the  original  con- 
tract being  a  borrowing  and  lending,  the  court  thinks  the  annu  ity  was  a  mere  devise 
to  pay  the  principal  with  usurious  interest  to  evade  the  statute,  this  will  be  within  the 
statute  ;  though  in  the  face  of  the  bargain  it  appears  ever  so  fair  a  sale  of  an  annuity, 
the  contrivance  of  the  annuity  as  the  usurious  reward  for  the  loan  of  money  shall  not 
evade  the  statute  made  for  the  benefit  of  mankind.  This  I  take  to  be  the  sum  and 
substance  to  be  collected  out  of  the  several  cases.  Tanfield  v.  Finch,  Cro.  Eliz.  26  ; 
Fuller's  case,  4  Leon.  208,  et  supra.  Symonds  v.  Cockerill,  Noy,  151  ;  Cotterell  v. 
Harrington,  Brownl.  180,  et  supra,  and  King  v.  Drury,  2  Leon.  7."] 

A,  after  the  statute  12  Car.  2,  viz.,  3  June,  13  Car.  2,  agreed  to  lend 
B  100?.  ;  and  that  for  the  forbearance  thereof  for  the  time  underwritten, 
B,  the  defendant,  should  pay  to  A,  the  plaintiff,  120?.  as  follows,  viz., 
40?.,  upon  the  20th  of  January  and  20th  of  July,  by  equal  portions  an- 
nually next  after  the  20th  day  of  the  then  instant  month  July  till  the 
120?.  be  paid ;  which  exceeded  the  rate  of  6?.  per  cent.  And  for  the 
further  security  B  gave  a  bond  of  200?.,  and  confessed  a  judgment.  Twis- 
den,  J.,  said  that  the  contract  here  was  not  usurious,  but  was  a  purchase 
of  an  annuity  for  three  years. 

Sid.  182,  pi.  1,  Rowe  v.  Bellasis.  The  plea  in  this  case  was  held  ill,  being  after 
judgment. 

It  is  to  be  observed,  that  if  the  agreement  of  the  parties  be  honest,  but 

is  made  otherwise  by  the  mistake  of  a  scrivener,  yet  it  is  not  usury. 

3  Mod.  307,  Ballard  v.  Oddey;  see  post,  letter  (E.)  8  Collier  v.  Nevill,  3  Dev.  30; 
Sussex  Bank  v.  Shipinan,  2  Harr.  (N.  J.)  R.  497.£f 

>  A  corrupt  agreement,  in  which  the  minds  of  the  parties  meet,  is  ne- 
cessary to  constitute  usury.  Therefore,  where  more  than  lawful  interest 
was  reserved,  with  the  knowledge  of  the  lender,  but  without  the  know- 
ledge of  the  borrower,  it  was  held  that  the  transaction  was  not  usurious. 

Smith  v.  Beach,  3  Dav,  2G8.  See  Price  v.  Campbell,  2  Call,  110 ;  Howell  v.  Auten, 
1  Green's  Ch.  R.  44. 

When  a  greater  rate  than  legal  interest  is  taken  by  a  party  to  a  contract, 


USURY.  273 

(C)  What  Agreements  or  Contracts  deemed  usurious,  &c. 

upon  a  mistaken  supposition  of  a  legal  right  to  do  so,  it  is,  nevertheless, 
a  corrupt  agreement  within  the  statute. 
Maine  Bank  v.  Bretis,  9  Mass.  49.£f 

[An  annuity  was  granted  at  six  years'  purchase  for  the  life  of  the 
grantor,  a  clergyman,  then  of  the  age  of  thirty-two  years,  charged  upon 
his  living,  with  a  clause  for  redemption  at  the  option  of  the  grantor,  after 
the  expiration  of  five  years,  for  five  years  and  a  half's  purchase.  It  was 
recited  in  the  annuity  deed,  that  the  agreement  had  been  made  for  a  loan 
of  the  money,  which  Avas  paid  as  the  price  or  consideration  for  the  annuity. 
But  it  appeared  to  the  court,  that  this  recital  was  made  by  the  attorney 
without  the  privity  or  direction  of  his  client,  who  really  and  substantially 
meant  to  purchase  an  annuity.  The  court  determined,  that  the  annuity 
was  not  usurious,  and  that  the  inaccuracy  of  the  recitals  in  the  instru- 
ment should  not  vitiate  a  contract  that  otherwise  seemed  to  be  a  fair  one. 
De  Grey,  C.  J.,  in  giving  judgment  in  this  case  observed,  "That  it  was 
essential  to  the  nature  of  a  usurious  contract,  that  there  must  be,  1.  A  loan. 

2.  That  illegal  interest  is  to  be  paid  for  such  loan.  And  it  is  essential  to 
the  nature  of  a  loan,  that  the  thing  borrowed  is  at  all  events  to  be  re- 
stored.^) If  that  be  bond  fide  put  in  hazard,  it  is  no  loan,  but  a  contract 
of  another  kind.  So  also,  if  illegal  interest  is  to  be  certainly  paid,  or  even 
upon  a  reasonable  possibility,  the  contract  is  usurious."  To  evade  these 
principles,  many  expedients  have  been  tried.  1.  To  make  the  interest 
precarious  and  uncertain.     2.  To  make  the  principal  itself  precarious. 

3.  Communication  concerning  a  loan  has  sometimes  infected  the  case,  and 
turned  a  contract  into  usury.  But  then  the  communication  must  be  mutual ; 
and  it  must  be  with  the  party  himself,  and  not  with  his  attorney.  There 
is  no  case  where  even  a  meditated  loan  has  been  bond  fide  converted  into 
a  purchase,  and  afterwards  held  usurious.  4.  Inequality  of  price  is  also 
a  suspicious  circumstance,  especially  if  very  inadequate.  5.  If  a  power 
of  redemption  be  given,  though  only  on  one  side,  it  is  a  strong  circum- 
stance to  show  it  a  loan,  as  in  Hooper  v.  Lawley,  3  Atk.  278.  But  that 
alone  will  not  be  conclusive.  G.  The  form  of  the  instrument.  If  that  im- 
ports a  loan,  and  it  was  so  meant,  the  contract  may  become  usurious.  At 
the  same  time,  if  the  transaction  be  bond  fide,  the  blunder  of  an  agent  shall 
not  make  it  otherwise,  as  in  Buckley  v.  Guildbank,  Cro.  Ja.  677,  where  in- 
terest was  made  payable  by  such  mistake  two  days  after.(6)_  7.  Subse- 
quent acts  of  the  parties  may  also  bea  material  evidence  of  intention. 

Murray  v.  Harding,  2  Black.  R.  859  ;  3  Wils.  390,  S.  C.  In  Lawley  v.  Hooper, 
3  Atk.  278,  Lord  Hardwicke,  in  determining  that  an  annuity  granted  by  Lawley  for 
his  life,  with  a  proviso  for  repurchasing  or  redeeming  it,  upon  giving  sis  months'  notice 
to  the  grantee,  was  a  loan,  seemed  to  lay  great  stress  upon  the  effect  of  the  proviso. 
From  the  language  his  lordship  used  upon  that  occasion,  an  idea  prevailed  for  a  con- 
siderable time,  that  the  inserting  of  such  a  proviso  infected  the  deed  with  usury.  It 
is  manifest,  however,  from  this  case  in  Murray  v.  Harding,  that  a  right  in  the  grantor 
to  determine  the  annuity  for  his  own  benefit,  does  not  create  that  necessity  or  obliga- 
tion of  repaying  the  principal  loan  at  all  events,  without  which  the  courts  have  re- 
peatedly declared  usury  against  the  statutes  cannot  be  committed.  And  Lord  Thurlow, 
in  Irnham  v.  Child,  1  Bro.  Ch.  R.  92,  said,  To  sell  an  annuity,  and  make  it  redeemable, 
is  not  usury,  because  it  is  not  a  loan,  {a)  That  there  must  be  a  loan  to  constitute  usury 
is  laid  down  in  several  other  cases.  2  Anders.  15,  pi.  8  ;  22  Vin.  Abr.  300,  S.  C. ;  Love- 
day's  case,  8  Co.  65.  But  there  may  be  usury  where  a  party  takes  more  than  the  law 
allows  for  the  forbearance  of  a  debt,  and  yet  in  that  case  there  is  no  loan  in  the 
ordinary  acceptation  of  the  term.  Thus  in  Pollard  v.  Scholy,  Cro.  Eliz.  20,  " Pollard 
sold  to  the  defendant  some  oxen  to  be  paid  for  at  a  given  time  :  when  the  time  was 

Vol.  X.— 35 


274  USURY. 

(C)  What  Agreements  or  Contracts  deemed  usurious,  &c. 

arrived,  Scholy  required  a  longer  day  for  payment,  and  Pollard  granted  it,  paying  to 
him  so  much  wheat,  as  exceeded  in  value  the  legal  rate  of  interest.  The  defendant  in 
debt  pleaded  the  statute,  and  would  avoid  the  contract ;  and  the  opinion  of  the  justice 
was  that  the  statute  doth  not  make  the  contract  void,  which  was  duly  made,  but  doth 
only  avoid  all  contracts  for  usury  ;  and  this  last  contract  is  void,  being  against  the 
statute,  but  the  first  was  good  being  made  bond  fide."  See  also  Spurrier  v.  Mayoss, 
1  Ves.  J.  531.  (b)  ||  That  a  mere  mistake  shall  not  make  a  transaction  usurious,  see 
1  Freem.  253,  264;  3  Wils.  390;  1  Camp.  R.  149.  || 

If  in  truth  it  appear  on  the  whole  of  the  transaction  that  a  loan  was 
intended  under  colour  of  an  annuity,  and  the  mode  of  annuity  was  forced 
by  the  lender  on  the  borrower,  the  court  will  consider  it  as  usurious, 
notwithstanding  a  colourable  contingency,  as  that  the  lender  at  the  end 
of  a  given  time  engage  to  supply  the  borrower  with  money  to  redeem. 

Richards  v.  Brown,  Cowp.  770;  {3  Bos.  &  Pul.  159.} 

||  An  annuity  for  four  lives,  with  a  covenant  by  the  grantor  within 
thirty  days  after  the  expiration  of  the  third  life,  to  insure  the  fourth  life 
to  the  amount  of  the  sum  paid  for  the  annuity,  is  not  an  usurious  con- 
tract, for  the  sum  is  placed  in  hazard. 

In  re  Naish,  7  Bing.  150. ||  pThe  purchase  of  an  annuity  or  other  devise,  to  cover 
a  usurious  transaction,  is  unavailing ;  if  the  contract  is  tainted  with  usury,  it  has  no 
force.    Lloyd  v.  Scott,  4  Peters,  205. £/ 

Dr.  Battie,  at  the  request  of  Moore,  sold  out  1000?.  South  Sea  an- 
nuities, at  a  loss  upon  the  whole  of  761.,  and  took  a  mortgage  for  1000?. 
from  Moore  at  5?.  per  cent.,  reducible  to  4?.  per  cent,  if  the  money  were 
repaid  in  a  given  time.  Dr.  Battie  afterwards  sold  out  at  Mr.  Moore's 
request,  1400?.  S.  S.  annuities  at  a  loss  upon  the  whole  of  267?.  15s., 
and  took  another  mortgage  from  Moore  for  1400?.  with  interest  at  51. 
per  cent.,  with  a  power  to  Moore  to  reinstate  the  1400?.  at  any  time 
within  two  years.  Upon  a  bill  for  foreclosure,  the  Master  reported  the 
two  principal  sums  of  1000?.  and  1400?.  with  interest  and  costs  due  there- 
upon ;  which  having  been  paid  by  the  plaintiff  into  court,  he  brought  his 
bill  {inter  alia)  to  be  paid  the  several  sums  of  76?.  and  267?.  lbs.,  with 
interest,  insisting  that  the  defendant  ought  to  have  been  charged  with 
them  in  the  account.  The  defendant  pleaded  the  proceedings  under  the 
decree  in  bar:  his  plea  on  being  argued  was  ordered  to  stand  for  an  an- 
swer, and  two  questions  were  made :  1 .  Whether  it  were  usury  ?  2.  Whe- 
ther the  court  would  relieve?  As  to  the  first,  Lord  Keeper  Henley  was 
clearly  of  opinion,  that  it  was  a  shift  within  the  statute ;  the  plaintiff  having 
received  but  924?.  instead  of  1000?.,  and  1132?.  5s.  instead  of  1400?., 
and  yet  having  paid  as  much  interest  as  was  equal  to  51.  per  cent,  upon 
the  sums  of  1000?.  and  1400?.     His  lordship  therefore  decreed  payment. 

Moore  v.  Battie,  Ambl.  371. 

But  a  mere  loan  of  stock  is  not  usurious,  nor  the  payment  of  the  divi- 
dends in  the  mean  time,  though  they  exceed  the  legal  rate  of  interest. 
Thus,  where  A,  to  accommodate  B,  sold  out  stock,  and  lent  B  the  money 
produced  by  the  sale,  on  an  agreement  that  B  should  replace  the  stock 
on  a  certain  day,  or  repay  the  money  lent  on  a  subsequent  day,  with 
such  interest  in  the  mean  time  as  the  stock  itself  would  have  produced ; 
it  was  adjudged,  that  this  was  not  usurious,  though  the  interest  exceeded 
5?.  per  cent.  The  loan  was  not  originally  usurious,  because,  for  a  limited 
time,  the  party  borrowing  had  it  in  his  power  to  repay  the  money  or  re- 
place the  stock  itself,  if  lie  had  chosen. 

Tate  v.  Wellings,  3  Term  It.  531.] 


USURY.  275 

(C)  What  Agreements  or  Contracts  deemed  usurious,  &c. 

sA  contract  by  which  borrower  agreed  to  pay  to  lender  interest  on 
Bank  stock,  received  by  him  as  cash  at  a  certain  price,  when  in  fact  the 
stock  was  worth  less  in  the  market,  is  usurious. 

Astor  v.  Price,  7  Mart.  N.  S.  409.0 

||  And  so,  where  the  defendant  being  indebted  to  the  plaintiff  in  486?. 
4s.  Gd.,  for  which  the  plaintiff  sued  him,  and  the  plaintiff  was  desirous  of 
investing  the  amount  in  stock  on  the  19th  November,  1803 ;  and  at  that 
day  the  sum  would  purchase  908?.  16s.  Id.  stock  ;  in  consideration  of  for- 
bearance from  his  action,  defendant  gave  plaintiff  a  bond  for  transferring 
to  him  the  above  sum  of  stock  on  the  19th  of  November,  1804,  with  such 
interest  as  such  stock  would  have  produced  in  the  mean  time  ;  it  was  held, 
that  this  was  not  usury,  since,  if  the  stock  fell,  the  plaintiff  would  be  the 
loser. 

Maddoek  v.  Rumball,  8  East,  R.  304 ;  and  see  Saunders  v.  Kentish,  8  Term  R. 
102  ;  Smedley  v.  Roberts,  2  Camp.  GOG  ;  Clarke  v.  Giraud,  1  Madd.  511. 

But  if  the  lender  of  the  stock  reserves  to  himself  the  right  of  electing 
whether  he  will  have  the  stock  replaced,  or  the  money  produced  by  sale 
of  it  repaid,  with  interest  at  five  per  cent.,  the  bargain  is  usurious  ;  since 
the  principal  and  interest  are  in  all  events  secured,  and  the  lender  takes 
the  chance  of  a  rise  in  the  value  of  stock,  without  any  risk  in  case  of  a 
fall ;  and  whether  the  arrangement  is  effected  by  one  instrument  or  by 
two, — one  for  the  replacing  of  the  stock,  the  other  for  the  repayment  of 
the  money  and  interest, — makes  no  difference. 

Barnard  v.  Young,  17  Yes.  44 ;  White  v.  Wright,  3  Barn.  &  C.  273 ;  and  see  Moore 
v.  Battie,  1  Eden  R.  273  ;  Boldero  v.  Jackson,  11  East,  612  ;  Chippendale  v.  Thurs- 
ton, Moo.  &  M.  Ca.  411 ;  Parker  v.  Eamsbottom,  3  Barn.  &  C.  267.  || 

{A  bond  was  given  in  1782,  in  the  penalty  of  50,000?.  conditioned  for 
the  payment  of  1000?.,  "  or  such  farther  sum  as  shall  be  equal  to  the  said 
1000?.  in  1774,  that  is  to  say,  to  purchase  as  much  land  and  as  many  ne- 
groes as  it  might  have  done  at  that  time,"  and  was  held  not  usurious. 
2  Hen.  &  Mun.  550,  Faulcon  v.  Harriss. 

And  an  agreement  for  the  purchase  of  stock,  to  be  transferred  at  a 
future  day,  at  a  price  below  the  then  value,  is  not  usurious. 
5  Esp.  Rep.  1G4,  Pike  v.  Ledwell.] 

[Where  the  borrower  of  money  gave  a  bond  for  the  payment  of  the 
principal  and  interest  at  5?.  per  cent.,  and  covenanted  at  the  same  time 
also  to  pay  the  lender  a  certain  portion  of  the  profits  of  a  trade  carried 
on  by  him  in  partnership  with  another  person,  it  was  adjudged  to  be 
usury  ;  for  the  principal  was  no  farther  hazarded  than  in  the  case  of  every 
other  loan,  namely,  by  the  risk  of  the  borrower's  insolvency :  as  between 
the  lender  and  the  partners  in  the  business,  he  was  not  liable  to  contri- 
bute to  the  losses  in  the  trade.  Here  is  a  provision  to  receive  the  pro- 
fits, but  none  to  engage  for  the  losses  of  the  trade. 

Morse  v.  Wilson,  4  Term  R.  353.] 

||  Gilpin  covenanted  with  Enderby  that  they  should  become  partners  in 
the  business  of  army  clothiers  for  ten  years,  and  that  Gilpin  should  ad- 
vance 20,000?.  as  part  of  the  capital  for  carrying  on  business,  and  that 
Enderby  should  find  another  like  sum,  and  that  E  should  have  2000?.  per 
ann.  out  of  the  profits,  or  out  of  the  capital  in  case  of  a  deficiency,  as  his 
share  of  profits,  the  rest  of  the  profits  to  be  taken  by  Gilpin  :  and  G  cove- 
nanted that,  on  the  determination  of  the  partnership,  the  said  20,000?. 


276  USURY. 

(C)  What  Agreements  or  Contracts  deemed  usurious,  &c. 

should  be  repaid  to  E,  and  that  G  should  guarantee  the  debts  and  losses 
of  the  firm  ;  and  that  in  case  the  partnership  effects  should  be  reduced 
below  20,000?.  it  should  be  lawful  to  determine  it,  on  notice,  and  that  the 
20,000/.  should  be  repaid  to  Enderby  on  the  dissolution.  In  an  action 
brought  by  Enderby  to  recover  the  20,000?.,  Gilpin  pleaded,  that  the 
deed  was  executed  by  way  of  shift,  in  pursuance  of  an  usurious  agreement. 
The  issue  on  this  plea  having  been  found  for  the  plaintiff  below,  negativ- 
ing the  corrupt  agreement,  and  judgment  being  given  for  the  plain- 
tiff below  by  the  C.  B.,  on  error  brought,  the  K.  B.  held,  that  after 
the  verdict  found,  the  deed  must  be  taken  to  disclose  the  real  intention 
of  the  parties,  and  that  it  was  not  therefore  void  on  the  ground  of  usury  : 
and  judgment  was  affirmed. 

Gilpin  v.  Enderby,  5  Barn.  &  A.  954;  5  Moo.  571 ;  and  see  Fereday  v.  Hordern, 
Jacob.  144;  Anderson  v.  Maltby,  2  Ves.  jun.  248. 

If  a  factor,  advancing  money  for  the  purchase  of  goods,  receives  a 
higher  commission  on  the  purchases  than  he  would  have  been  content  to 
take,  had  he  not  advanced  the  money,  the  transaction  is  usurious. 

Harris  v.  Boston,  2  Campb.  348.  || 

[On  a  bill  praying  that  the  defendants  might  be  decreed  to  complete 
their  purchase  of  certain  houses,  the  defendants  insisted  that  the  contract 
for  the  purchase  was  usurious.  The  agreement  was,  to  purchase  the  houses 
for  430?.,  200?.  to  be  paid  in  money,  and  the  remainder  on  a  future  day, 
with  51.  per  cent,  interest,  or  in  default  of  payment,  to  pay  a  rent  of  42?. 
per  ann.  till  payment,  subject  to  a  deduction  of  5?.  percent,  for  so  much 
of  the  remaining  sum  of  230?.  as  should  be  then  paid.  Possession  was 
delivered  to  the  defendants.     Adjudged  not  to  be  usury. 

Spurrier  v.  Mayoss,  4  Bro.  Ch.  R.  28 ;  1  Ves.  jun.  531,  S.  C.  ||See  3  Barn.  &  Aid. 
G44;||  pEvans  v.  Negley,  13  S.  &  R.  218.0 

A  person  paid  197?.  for  a  note  of  200?.  which  had  three  months  to  run, 
and  at  the  expiration  of  that  time  took  another  note  of  200?.  upon  ad- 
vancing 3?.  more  for  other  three  months.  Upon  an  issue  out  of  Chancery, 
Lee,  C.  J.,  held  it  usury.  However,  in  the  case  of  Lloyd  v.  Williams, 
Blackstone,  J.,  said,  "  lie  conceived  that  interest  may  be  as  lawfully  re- 
ceived beforehand  for  forbearing,  as  after  the  term  is  expired  for  having 
forborne.  And  it  shall  not  be  reckoned  as  merely  a  loan  for  the  balance  ; 
else  every  broker  in  London,  who  takes  51.  per  cent,  for  discounting  bills, 
would  be  guilty  of  usury.  For  if,  upon  discounting  a  100?.  note  at  51. 
per  cent,  he  should  be  construed  to  lend  95?.  only,  then  at  the  end  of  the 
time  he  would  receive  51.  interest  for  the  loan  of  95?.  principal,  which  is 
above  the  legal  rate."  It  has  been  since  determined,  that  in  discounting 
notes  the  common  usage  of  charging  something  for  trouble,  &c,  beyond 
the  rate  of  legal  interest,  is  not  usurious,  provided  no  corrupt  bargain  be 
made  for  taking  usurious  interest.  So,  in  an  action  for  usury,  tried  be- 
fore Buller,  J.,  against  a  banker  at  Sudbury,  it  appeared,  that  it  was 
their  constant  usage  to  discount  bills  in  London  for  their  correspondents 
at  Sudbury,  for  which  the  bankers  charged,  beyond  the  legal  interest  for 
the  time  the  bills  had  to  run,  5s.  per  cent,  on  the  gross  sum,  without  any 
reference  to  the  time  the  bills  had  to  run.  The  jury  found  for  the  de- 
fendant under  the  judge's  direction. 

Massa  v.  Dauling,  2  Stra.  1243 ;  2  Black.  R.  793.  ||See  Wade  q.  t.  v.  Wilson, 
1  East,  R.  195 ;  Bodenham  v.  Purchas,  2  Barn.  &  A.  47  ;||  Auriol  v.  Thomas,  2  Term 
R.  32  ;  Winch  v.  Fenn,  Sitt.  after  Hil.  178G ;]  112  Term  R.  52,  n.  ;||  {3  Bos.  &  Pul. 
158.} 


USURY.  277 

(C)  What  Agreements  or  Contracts  deemed  usurious,  &c. 

||  All  commission  where  a  loan  of  money  exists,  must  be  considered  as 
an  excess  beyond  legal  interest,  unless  it  is  ascribable  to  trouble  and  ex- 
pense bond  fide  incurred  in  the  course  of  business,  transacted  by  the 
persons  to  whom  such  commission  is  paid;  but  whether  any  thing,  and 
now  much,  is  justly  ascribable  to  this  latter  account,  viz.,  that  of  trouble 
and  expense,  is  always  a  question  for  the  jury,  who  must,  on  a  view  of  all 
the  facts,  exercise  a  sound  judgment  thereupon;  and  where  there  is  a 
contrariety  of  evidence  on  the  point,  the  court  will  not  set  aside  the 
verdict,  and  grant  a  new  trial,  although  the  verdict  may  be  against  the 
judge's  direction  and  opinion,  unless  it  appears  clearly  that  the  jury 
have  drawn  an  erroneous  conclusion. 

Carstairs  v.  Stein,  4  Maule  &  S.  201 ;  and  see  Harnett  v.  Yea,  1  Bos.  &  Pul.  153 ; 
Palmer  v.  Baker,  1  Maule  &  S.  56 ;  Stoveld  v.  Eade,  4  Bing.  81. 

A  charge  by  a  bill-broker  in  the  country,  of  10s.  per  cent,  for  dis- 
counting a  bill  payable  in  London,  has  been  held  not  usurious. 

Ex  parte  Benson,  1  Madd.  112  ;  and  see  15  Ves.  120 ;  17  Ves.  332  ;  j3Musgrove  v. 
Gibbs,  1  Ball.  210 ;  Wyeoff  v.  Loughead,  2  Ball.  92 ;  Raplee  v.  Morgan,  2  Scamm. 
5G3  ;  Lloyd  v.  Reach,  2  Conn.  175 ;  1J.  J.  Marsh.  497.£/ 

And  a  mere  agreement  that  bankers  shall  accept  and  pay  bills  drawn 
on  them,  out  of  funds  to  be  provided  beforehand,  for  a  commission  of  5s. 
per  cent.,  cannot  be  usurious,  since  no  advance  of  money  is  contemplated, 
which  is  essential  to  a  usurious  transaction.  If  an  advance  of  money 
were  contemplated  in  such  an  agreement,  then  it  would  be  a  question 
for  the  jury,  whether  the  commission  was  a  cover  for  usury,  or  a  com- 
pensation for  trouble. 

Masterman  v.  Cowrie,  3  Camp.  Ca.  487  ;  and  see  Bagnall  v.  Wigley,  11  East,  43. 

And  so  also  the  acceptor  of  a  bill  taking  a  premium  of  sixpence  in  the 
pound  from  the  holder  for  the  payment  of  the  bill  before  it  is  due,  is 
not  usury,  since  there  is  no  loan  or  forbearance :  it  is  a  very  improper 
practice,  but  not  usury. 

Barclay  q.  t.  v.  Walmsley,  4  East,  55.  || 

[If  a  promissory  note  be  given  for  payment  of  a  sum  lent  wTith  usurious 
interest,  and  the  note  when  due  be  taken  up,  and  another  note  be  sub- 
stituted for  it,  the  offence  of  usury  is  not  thereby  committed ;  nor  is  the 
penalty  incurred  till  the  latter  note  be  paid. 

Maddock  v.  Hammett,  7  Term  R.  184. 

/3  Where  a  note  is  renewed,  from  time  to  time,  and  interest  added  in ; 
on  a  suit  on  the  last  note,  held,  that  the  jury  may  go  back  and  overhaul 
the  whole  transaction,  and  give  the  lender  only  six  per  cent,  for  the 
money. 

Baggs  v.  Louderback,  12  Ohio,  153.  See  Fields  v.  Gorham,  4  Bay,  251 ;  Botsford 
v.  Sauford,  5  Conn.  276 ;  Wales  v.  Webb,  5  Conn.  154. 

A  promissory  note  was  made,  and  was  valid  in  its  inception ;  it  was 
transferred  by  the  payee  on  a  usurious  consideration.  On  this  note  an 
action  was  brought  by  the  endorsee,  and  the  defendant  pleaded  the  in- 
termediate usury  to  impeach  the  plaintiff's  title;  held,  that  this  was  a 
good  defence. 

Lloyd  v.  Reach,  2  Conn.  275 

A  usurious  security  is  given  up,  and  a  new  security  is  taken  for  the 
principal  sum  due  and  legal  interest ;  held,  that  the  latter  is  good. 
Rilbourn  v.  Bradlay,  3  Bay,  356. 

2  A 


278  USURY. 

(C)  What  Agreements  or  Contracts  deemed  usurious,  &c. 

A  gave  a  usurious  security,  with  B  as  surety  for  him  ;  he  then  paid  the 
amount  of  such  security  to  B,  who,  in  consequence  of  such  payment,  gave 
his  own  note  to  the  creditor  for  the  same  amount :  held,  that  the  latter 
note  was  given  on  a  new  consideration,  and  unaffected  by  usury. 

Scott  v.  Lewis,  2  Conn.  132.     See  Church  v.  Tomlinson,  2  Conn.  134,  n.£f 

A,  residing  at  Portsmouth,  drew  a  bill  for  600?.  on  S,  in  London.  The 
bill  was  payable  to  the  defendants,  who  were  bankers  in  Portsmouth,  or 
order,  thirty  days  after  date,  and  immediately  after  it  was  drawn,  it  was 
taken  to  the  defendants,  who  gave  their  note  for  600?.  payable  three  days 
after  sight  at  a  house  in  London.  For  this  the  defendants  received  a  dis- 
count of  51.  per  cent.,  calculating  on  the  thirty  days  the  bill  had  to  run,  but 
making  no  deduction  on  account  of  three  days  the  note  had  to  run  after 
sight,  or  of  the  three  days'  grace  which  the  bankers  took  thereon.  Lord 
Kenyon  said,  he  was  clearly  of  opinion,  that  this  was  a  usurious  contract, 
whether  the  person  discounting  the  bill  chose  to  receive  a  note  or  money. 
If  A  chose  to  have  a  note  payable  in  town,  the  defendants  should  not 
have  taken  interest  for  the  time  that  note  had  to  run,  but  should  have 
computed  their  interest  from  the  time  it  was  payable. 

Maddock  v.  Griffiths,  Peake's  N.  P.  Cas.  200. 

{A,  being  a  banker  in  the  country,  discounts  bills  at  four  months  for 
B,  and  takes  the  whole  interest  for  the  time  they  have  to  run.  B,  on  being 
asked  how  he  will  have  the  money,  directs  part  to  be  carried  to  his  account, 
part  to  be  paid  in  cash,  and  part  by  bills  on  London,  some  at  three,  some 
at  seven,  and  some  at  thirty  days'  sight.  After  a  verdict,  finding  the  trans- 
action not  usurious,  the  court  refused  to  grant  a  new  trial,  since  the  sur- 
plus of  interest  taken  by  A  from  his  having  made  no  rebate  of  interest 
on  the  bills  on  London  might  be  referable  to  the  expenses  of  remittance, 
and  the  jury  were  to  judge  whether  giving  the  bills  on  London  was  a 
mere  cover  for  a  usurious  contract. 

1  Bos.  &  Pul.  144,  Ilammett  v.  Yea.  Vide  Peake,  N.  P.  200,  Matthews  v.  Griffiths ; 
7  Term,  185,  Maddock  v.  Hammett.  So  including  in  a  note,  given  as  security  for  an 
antecedent  debt,  a  fair  and  reasonable  charge  for  the  expenses  of  the  creditor  in  secur- 
ing the  debt,  is  not  usury ;  and  whether  such  charge  was  fair  and  reasonable  is  a 
question  of  fact  to  be  left  to  the  jury.     2  Day,  483,  Kent  v.  Phelps. 

The  grantor  of  an  annuity,  having  agreed  with  the  grantee  to  redeem, 
draws  a  bill  of  exchange  for  5000?.  at  three  years,  Avhich  the  grantee 
discounts  in  the  following  manner :  he  takes  4083?.  6s.  &d.  as  the  amount 
of  the  purchase-money  and  arrears,  advances  166?.  13s.  4c?.  to  the  grantor 
in  cash,  and  takes  750?.  as  interest  for  three  years  upon  5000?.  The 
transaction  is  usurious. 

3  Bos.  &  Pul.  154,  Marsh  v.  Martindale.} 

Where,  upon  a  negotiation  for  a  loan  of  money,  the  lender  said,  he 
could  not  advance  money,  but  would  furnish  goods,  which  the  borrower 
took  and  sold  by  the  intervention  of  a  broker  recommended  by  the  lender, 
and  upon  the  issue  of  the  negotiation  the  borrower,  instead  of  200?. 
which  he  meant  to  borrow,  received  only  117?.  2s.  2d. ;  the  court  held 
the  transaction  to  be  a  loan  of  money  for  more  than  5?.  per  cent,  under 
colour  of  a  sale  of  goods,  and  therefore  usurious. 

Lowe  v.  Waller,  Dougl.  73G  ;  j3Philip  v.  Kirkpatrick,  Add.  126  ;  Iluling  v.  Drcxell, 
7  Watts,  12G,  129.J/ 

B,  a  student  of  a  college  in  Oxford,  applied  to  A,  a  Jew,  to  raise  him  a 


USURY.  079 

(C)  "What  Agreements  or  Contracts  deemed  usurious,  &c. 

sum  of  money :  A  recommended  one  P,  and  P  introduced  him  to  V,  who 
let  him  have  the  goods  to  the  amount.  A  attended,  and  recommended 
the  choice  of  the  silks,  for  which  B  gave  his  note  for  2224/.  at  twelve 
months'  date.  The  silks  were  afterwards  bought  by  one  11  for  about  half 
the  price.  The  note  was  afterwards  endorsed  by  V  to  D  in  the  settle- 
ment of  an  account,  who  was  completely  ignorant  of  the  transaction  with 
B.  Upon  B's  application  to  the  court  to  compel  the  delivery  up  of  the 
note,  on  payment  of  what  the  silks  actually  produced,  Lord  Thurlow  said, 
"I  am  to  inquire  whether,  under  the  mask  of  trading,  this  is  not  a  method 
of  lending  money  at  an  extraordinary  rate  of  interest ;  and  there  is  not 
a  doubt  that  in  this  case  the  transaction  was  merely  for  the  purpose  of 
raising  money,  to  supply  the  necessities  of  this  young  man.  Do  they 
deny  knowing  the  goods  were  to  be  sold  ?  I  take  it  therefore  as  an  ad- 
vancement of  goods  instead  of  money  to  supply  his  necessities." 

Barker  v.  Yansommer,  1  Bro.  Ch.  R.  149.  In  arguing  this  case,  several  other  cases 
of  a  like  tendency  were  cited  ;  as  that  of  Cecil  v.  Sutton  and  Roundtree  in  the  Exche- 
quer, where  the  defendants  supplied  the  plaintiff  with  goods,  in  order  to  enable  him 
to  take  up  a  note,  and  the  court  granted  an  injunction  till  the  amount  for  which  the 
goods  sold  should  appear.  In  Lord  Polwarth  v.  Cooke,  his  lordship  had  applied  for 
the  loan  of  150/.,  and  Cooke  gave  him  50/.,  a  gold  watch,  and  a  Cremona  fiddle ;  and  the 
court  ordered  the  securities  to  be  given  up  on  payment  of  what  was  obtained  by  sale. 

A  applied  to  B  for  the  loan  of  1500/.  on  mortgage :  B  said  his  money 
wa3  in  the  funds,  and  that  he  had  purchased  at  751. ;  if  therefore  A  would 
have  stock  at  that  value,  he  would  transfer  as  much  as  would  amount  to 
that  sum ;  which  he  did,  and  A  gave  a  mortgage  accordingly  for  1500/. 
A  lost  two  and  a  half  per  cent,  on  the  sale  of  the  stock.  The  executor 
of  B  could  not  maintain  an  ejectment  on  the  mortgage-deed ;  for  in  fact 
the  deed  was  void  by  the  statute ;  and,  moreover,  no  action  could  be 
maintained  on  a  contract  usurious  at  common  law. 

Davison  v.  Barnard  Pitt,  Espin.  N.  P.  1. 

So,  if  the  discounter  of  a  bill  of  exchange  make  the  holder  take  goods 
at  a  higher  price  than  they  are  worth  upon  a  fair  estimate,  it  is  usury. 
Pratt  v.  Willey,  Ibid.  40. 

But  in  the  Duke  of  Ancaster  v.  Pickett,  the  court  refused  to  relieve 
the  Duke,  who  had  purchased  goods  of  Pickett,  and  had  sold  them  again 
for  less  money;  for  the  jewels  were  sold  in  the  common  course  of  trade, 
and  not  with  any  view  of  accommodating  the  Duke  with  the  means  of 
raising  or  borrowing  money  upon  them. 

1  Bro.  Ch.  R.  151.] 

||  If  the  goods  are  forced  upon  the  party  for  whom  a  bill  is  discounted, 
the  onus  of  showing  that  they  were  given  at  the  real  value,  so  that  there 
should  be  no  loss  on  a  resale,  lies  on  the  plaintiff  suing  on  the  bill ;  but 
where  the  party  received  the  goods  readily,  it  was  held,  that  it  might  be 
presumed  they  were  fairly  charged. 

Davis  v.  Hardacre,  2  Camp.  375 ;  Coombe  v.  Miles,  Ibid.  553.  || 

[An  action  was  brought  here  upon  a  bond  entered  into  at  Calcutta, 
where  both  parties  then  resided,  and  the  plaintiff  still  resided ;  but  the 
defendant  was  in  England ;  and  nine  per  cent,  was  the  rate  of  interest 
made  payable  by  the  condition  of  the  bond.  Lord  Mansfield  said,  "The 
plaintiff  is  in  justice  entitled  to  recover  the  sum  really  lent  to  the  defend- 
ant, together  with  Indian  interest  till  the  signing  of  the  judgment ;  but 


280  USURY. 

(C)  What  Agreements  or  Contracts  deemed  usurious,  &c. 

with,  only  legal  interest  of  this  country  (which  is  no  more  than  five  per 
cent.)  from  the  time  of  the  liquidation  of  the  debt  by  the  judgment." 

Bodily  v.  Bellamy,  2  Burr.  1094  ;  }4  Johns.  Rep.  183,  Foden  v.  Sharp.}  ||  See  Har- 
vey v.  Archbold,  3  Barn.  &  C.  G29 ;  Thompson  v.  Powles,  2  Sim.  194. || 

A  special  memorandum  was  endorsed  on  a  bond  given  for  the  payment 
of  100/.  with  interest  at  51.  per  cent,  in  payments  of  20/.  yearly  by  quar- 
terly payments  of  5?.  each.  The  endorsement  was  to  this  eiFect :  that  at  - 
the  end  of  each  year  the  year's  interest  due  was  to  be  added  to  the  principal 
sum ;  and  then  the  20/.  received  during  the  year  to  be  deducted,  and  the 
balance  to  continue  as  principal.  As  the  intention  of  the  parties  did  not 
appear  to  be  usurious ;  as  not  the  interest  on  the  whole  100/.,  but  the 
interest  due,  was  to  be  added  to  the  principal  at  the  end  of  the  year,  and 
the  interest  due  could  only  be  taken  to  mean  what  was  legally  due ;  as 
there  was  no  loan,  but  the  consideration  of  the  bond  was  the  giving  up 
of  an  annuity ;  the  court  of  K.  B.  dissent.  Kenyon,  C.  J.,  held,  that  the 
contract  was  not  usurious,  and  that  opinion  was  afterwards  affirmed  in 
the  Exchequer-chamber. 

Le  Grange  v.  Hamilton,  4  Term  R.  613 ;  2  H.  Black.  142,  S.  C.  in  error. 

||  Where  bonds  for  the  amount  of  purchase-money  of  property  were 
given,  payable  by  instalments,  which  instalments  were  composed  of  prin- 
cipal and  interest,  it  was  contended,  as  the  bonds  themselves  necessarily 
carried  interest,  this  was  interest  upon  interest,  and  usury ;  but  the  Lord 
Chancellor  held,  that  as  the  obligee  on  each  instalment  becoming  due 
might  have  had  judgment  for  the  principal  and  interest  due  on  the  bonds, 
there  was  no  usury. 

Tarleton  v.  Backhouse,  Coop.  C.  C.  231. 

And  though  an  antecedent  contract  for  a  loan  for  twelve  months,  to 
settle  the  balance  at  the  end  of  six  months,  and  the  interest  to  carry 
interest  for  the  subsequent  six  months,  is  illegal,  yet  an  agreement  at 
the  end  of  the  six  months  to  settle  accounts,  and  the  balance  to  carry 
interest  for  the  next  six  months,  is  good. 

Ex  parte  Bevan,  9  Ves.  223  ;  Eaton  v.  Bell,  5  Barn.  &  A.  40  ;  and  see  3  Camp.  467.  || 
{Taking  a  premium  exceeding  the  legal  rate  of  interest  for  anticipating 
payment  of  a  debt  is  not  usury ;  there  being  no  loan  or  forbearance. 

4  East,  55,  Barclay  v.  Walmsley;  5  Esp.  Rep.  11,  S.  C. 

A  fair  purchase  of  a  bond  or  note  at  any  discount  is  not  usury. 

1  Pall.  217,  Musgrove  v.  Gibbs ;  2  Ball.  92,  Wycoff  v.  Longhead ;  2  Hen.  &  Mun. 
14,  Kenncr  v.  Hord ;  post,  p.  299,  300. 

If  A  lend  money  to  B,  who  puts  it  out  at  usurious  interest,  and  agrees 
to  pay  to  A  the  same  rate  of  interest  which  he  is  receiving  upon  A's  mo- 
ney, this  is  usury  between  A  and  B,  and  an  endorser  of  B's  note  to  A 
may  avail  himself  of  the  plea  of  usury. 

3  Cran.  180,  Levy  v.  Gadsby. 

It  is  not  usurious,  upon  a  settlement  of  accounts,  to  take  a  bond  or 

note  for  the  balance  due,  including  interest,  and  to  receive  interest  on 

such  bond  or  note. 

1  Hen.  &  Mun.  4,  Brown  v.  Brent.  Vide  as  to  compound  interest,  2  Ves.  J.  15, 
Morgan  v.  Mather ;  9  Ves.  J.  223,  Ex  parte  Bevan  ;  Ibid.  271,  Chambers  v.  Goldwin  ; 
11  Ves.  J.  92,  Raphael  v.  Boohm  ;  12  Ves.  J.  127,  Dornford  v.  Dornford  ;  1  Binn.  152, 
159,  1G5,  Sparks  v.  Garrigues ;  2  Mass.  T.  Rep.  284,  Tucker  v.  Randall;  Ibid.  568, 
Greenleaf  v.  Kellogg;  3  Mass.  T.  Rep.  221,  Cooley  v.  Rose.] 


USURY.  281 

(C)  What  Agreements  or  Contracts  deemed  usurious,  &c. 

pWhen  a  certain  gain  is  reserved  to  the  lender,  besides  the  interest, 
the  contract  is  usurious. 
Philip  v.  Kirkpatrick,  Add.  12G. 

But  a  reasonable  commission  beyond  legal  interest,  for  extra  inci- 
dental charges,  as  for  agency  in  remitting  bills  for  acceptance  and  pay- 
ment, it  seems,  is  not  usurious. 

Iluling  v.  Drexell,  7  Watts,  126,  129. 

A  stipulation  contained  in  a  mortgage,  that  in  default  of  payment  of 
interest,  &c,  the  mortgagee  may  sue  out  a  scire  facias,  and  recover  in 
addition  all  costs,  charges,  and  expenses  of  every  kind  which  the  plain- 
tiff shall  or  may  sustain  on  account  of  such  default;  held,  that  this  does 
not  render  the  contract  usurious. 
Iluling  v.  Drexell,  7  Watts,  126. 

In  Pennsylvania,  a  transaction  may  be  usurious  when  the  price  of  land 
or  other  property  is  retained  by  a  purchaser  on  condition  of  paying  interest 
for  its  use,  although  the  annual  compensation  may  be  denominated  rent. 

Evans  v.  Negley,  13  S.  &  R.  218. 

The  allowance  of  commission  to  the  holder  of  certain  notes,  by  the 
drawer,  in  case  the  notes  shall  not  be  paid  when  due,  it  seems,  is  usurious. 

Large  v.  Passmore,  5  S.  &  R.  135. 

A  commission  may  be  received  on  an  advance  or  loan  of  credit  by  one 

person  to  another  without  liability  under  the  usury  law. 

Gray  v.  Brackenridge,  2  Penns.  75  ;  Hutchinson  v.  Hosmer,  2  Conn.  341 ;  De  Forest 
v.  Strong,  8  Conn.  513 ;  but  see  Steele  v.  Whipple,  21  Wend.  103. 

A  fair  purchase  of  a  bond  or  note  may  be  made  even  at  a  discount  of 
twenty  or  thirty  per  centum,  without  committing  the  offence  of  usury. 

Musgrove  v.  Gibbs,  1  Dall.  216,  217 ;  Wycoff  v.  Loughead,  2  Pall.  92 ;  Raplee  v. 
Morgan,  2  Scam.  563  ;  Lloyd  v.  Reach,  2  Conn.  175  ;  1  J.  J.  Marsh.  497  ;  2  Munf.  36. 

A  bond  was  conditioned  to  pay  a  sum  of  money  in  seven  years,  and 
"the  lawful  interest  thereon  yearly  and  every  year  from  the  date  ;"  there 
was  an  agreement  endorsed  on  it  by  the  obligor,  that  "if  any  part  of  the 
said  interest  shall  remain  unpaid  for  the  space  of  three  months,  to  allow 
the  said  obligee  lawful  interest  for  the  same,  from  the  end  of  the  said 
three  months  until  paid;"  held,  that  the  agreement  was  not  usurious, 
and  might  be  enforced. 

Pawling  v.  Pawling,  4  Yeates,  220. 

To  constitute  usury,  there  must  be  a  borrowing  and  lending  of  money, 
by  the  plaintiff  to  the  defendant,  or  the  forbearance  of  a  pre-existing  debt. 

Hancock  v.  Hodgson,  3  Scam.  333. 

Where  one  borrowed  money  and  agreed  to  pay  interest  for  it  annually, 
and  did  not  do  it,  and  some  years  afterwards  the  parties  ascertained  the 
amount  then  due  with  compound  interest,  and  the  borrower  gave  new 
notes  for  the  amount  thus  ascertained ;  held,  that  this  was  not  usury 
under  the  statute  of  Connecticut. 

Fobes  v.  Cantfield,  3  Ohio,  17. 

An  agreement  to  pay  five  per  cent,  collection  fees  in  addition  to  the 

legal  rate  of  interest  for  money  loaned,  is,  in  Ohio,  considered  against 

public  policy  and  void. 

State  of  Ohio  v.  Taylor,  10  Ohio,  378  ;  Shelton  v.  Gill,  11  Ohio,  417.  See  as  to  tho 
rule  in  Pennsylvania,  Iluling  v.  Drexell,  7  Watts,  126. 

Vol.  X.— 30  2  a  2 


282  USURY. 

(C)  What  Agreements  or  Contracts  deemed  usurious,  &c. 

The  Bank  of  Muskingum  agreed  with  certain  contractors  on  the  public 
works,  that  the  bank  would  loan  money  to  the  state,  to  be  applied  to  the 
public  works  they  are  employed  on,  and  charge  the  contractors  five  per 
centum  commissions,  is  an  illegal  shift  and  device  to  obtain  more  than  six 
per  cent.,  and  such  contract  cannot  be  enforced  by  the  bank ;  but  if  the 
contractors  actually  paid  the  five  per  cent,  commissions,  they  cannot  re- 
cover the  money  back,  being  in  pari  delicto. 

Spalding  v.  Bank  of  Muskingum,  12  Ohio,  544. 

A  parol  promise  to  pay  more  than  lawful  interest,  made  at  the  giving 
of  a  note,  and  to  induce  the  lender  of  the  money  to  take  it,  and  which 
was  part  and  parcel  of  the  contract,  renders  the  note  usurious  and  void. 
Atwood  v.  Whittlesey,  2  Root,  37. 

Where  a  note  is  given  for  an  antecedent  debt,  and  it  includes  in  the 
amount  a  fair  and  reasonable  charge  for  the  expenses  of  the  creditor  in 
securing  the  debt,  it  is  not  usury. 

Camp  v.  Bates,  11  Conn.  487. 

When  the  services  of  a  slave,  given  for  the  use  of  money,  exceed  in 
value  the  highest  rate  of  conventional  interest,  the  contract  is  usurious. 

Galloway  v.  Began,  4  Mart.  N.  S.  167  ;  Richardson's  Adm'r  v.  Brown,  3  Bibb,  207. 

An  agreement  entered  into  in  New  York,  and  to  be  executed  there,  by 
which  A  and  B  exchange  their  notes,  bearing  interest  at  six  per  centum, 
and  in  consideration  thereof,  B  engages  to  insure  a  certain  number  of 
lives  with  A,  at  the  usual  rates,  and  also  to  send  his  annual  crop  of 
sugar  to  A,  to  be  sold  on  the  usual  commissions,  is  usurious  and  void  by 
the  laws  of  New  York. 

Clague  et  al.  v.  Their  Creditors,  2  Lo.  R.  115. 

Where  the  lender  and  borrower  agreed  that  the  former  should  receive 
ten  per  cent,  interest,  per  annum,  on  his  advances  to,  and  one-third  of 
the  profits  in  the  mercantile  firm  of  the  latter,  the  contract  was  declared 
to  be  usurious. 

Flower  v.  Millaudon,  6  Lo.  Rep.  709. 

To  be  tainted  with  usury,  an  obligation  must,  in  its  inception,  be 
based  upon  a  loan  of  money  above  the  legal  rate  of  interest. 

Norwood  v.  Waddell,  11  Lo.  R.  493;  Tardeveau  v.  Smith's  Ex'r,  Hardin,  175 ; 
M'Ginnis  v.  Hart,  4  Bibb,  327 ;  Knox  v.  Black,  1  Marsh.  298 ;  Price  v.  Campbell, 
2  Call.  110. 

A  loan  of  money  and  an  obligation  taken  by  the  lender  from  the  bor- 
rower, to  deliver  slaves  of  a  certain  description  in  a  certain  time,  worth 
more  than  the  money  and  legal  interest,  held  to  be  usurious. 

Lindley  v.  Sharp,  7  Monr.  248. 

A  was  indebted  to  B  for  a  certain  sum ;  on  the  day  of  payment,  A 
agreed  to  give  B  more  than  six  per  cent,  for  indulgence;  a  bond  was 
then  given  for  the  principal  sum,  and  the  amount  beyond  the  legal  in- 
terest was  settled  partly  in  money  and  partly  in  a  note.  On  an  action 
on  this  bond,  it  was  held  that  the  transaction  was  usurious. 

Glisson  v.  Newton's  Ex'rs,  1  Hayw.  33G.     See  Conf.  Rep.  28. 

A,  a  resident  of  North  Carolina,  being  in  New  York,  contracted  a  debt 
there  with  B,  who  lived  at  the  latter  place ;  afterwards  A  paid  to  the  agent 
of  B,  in  North  Carolina,  a  part  of  the  debt,  and  credit  was  given  him  four 
months  for  the  balance,  with  interest  at  the  New  York  rate,  seven  per  cent, 


USURY.  283 

(C)  "What  Agreements  or  Contracts  deemed  usurious,  &c. 

and  a  bond  given  for  the  debt  and  interest.  Held,  that  this  bond  was 
not  contrary  to  the  usury  laws  of  North  Carolina. 

31 'Queen  v.  Burns,  1  Hawks,  47G. 

Whenever  by  the  terms  of  the  contract,  the  debtor  can  avoid  the  pay- 
ment of  a  larger  sum,  by  the  payment  of  a  smaller  at  an  earlier  day,  the 
contract  is  not  usurious  but  conditional,  and  the  larger  sum  is  considered 
as  a  penalty. 

Moore  v.  Hylton,  1  Dev.  Eq.  429 ;  Winslow  v.  Dawson,  1  Wash.  118. 

When  a  security  is  usurious  in  its  creation,  it  is  void  in  the  hands  of 
an  innocent  holder.  But  if  valid  in  its  inception,  a  subsequent  usurious 
agreement  does  not  invalidate  it. 

Collier  v.  Nevill,  3  Dev.  30 ;  Wilkie  v.  Roosevelt,  3  Johns.  Cas.  206 ;  Munn  v.  The 
Commission  Company,  15  Johns.  44 ;  Bennet  v.  Smith,  15  Johns.  355. 

A  note  is  executed  for  $607,  payable  in  certain  bank-notes ;  it  is  after- 
wards agreed  to  extend  the  time  of  payment,  and  a  note  is  executed  for 
$607  payable  in  specie ;  the  bank-notes  were  then  worth  only  $456. 
Held,  that  this  is  usury. 

Lawrence  v.  Morrison,  1  Yerg.  444. 

Where  there  was  a  tacit  understanding  between  a  borrower  and  lender, 
founded  on  a  known  practice  of  the  latter,  to  lend  money  at  legal  inte- 
rest, if  the  borrower  purchase  of  him  a  horse,  at  an  unreasonable  price  ; 
this  is  a  shift  to  evade  the  statute  against  usury. 

Douglass  v.  M'Chesney,  2  Rand.  109. 

When  an  article  of  fluctuating  value  is  sold,  and  is  to  be  repaid  in 
kind,  with  more  than  the  legal  rate  of  interest  for  forbearance  on  the 
price  at  the  time  of  sale,  the  transaction  is  usurious. 

Hamblin  v.  Fitch,  Kirb.  R.  260 ;  5  Cowen,  149,  n.  a. 

A  mortgage  taken  for  a  sum  of  money  lent,  including  a  former  usuri- 
ous loan,  is  void. 

Jackson  v.  Packard,  6  Wend.  416. 

Where  interest  is  calculated  and  received  upon  a  note,  upon  the  prin- 
ciple of  three  hundred  and  sixty  days  in  a  year,  it  is  usurious. 

Utica  Insurance  Company  v.  Tilliman,  1  Wend.  555.  See  New  York  Firemen  In- 
surance Company  v.  Ely,  2  Cowen,  678. 

A  contract  by  which  one  lets  a  certain  number  of  sheep,  and  the  other 
agrees  on  a  year's  notice  to  return  the  same  number,  the  same  quality 
and  the  same  age  as  those  received,  and  in  the  mean  time  to  pay  annu- 
ally fifty  cents  per  head  for  the  sheep,  although  the  value  of  each  sheep 
is  less  than  a  principal  sum,  the  interest  of  which  at  seven  per  centum 
per  annum  would  amount  to  fifty  cents,  is  not  usurious. 
Hall  v.  Haggart,  17  Wend.  280. 

The  Farmers  and  Mechanics'  Bank  of  Georgetown  discounted  the  notes 

of  A,  payable  in  thirty  days,  and  instead  of  money,  paid  A  the  proceeds 

of  the  notes  in  post-notes,  that  is,  bank-notes  payable  at  a  future  day, 

without  interest,  such  post-notes  being  then  at  one  and  half  of  one  per 

cent,  discount  in  the  market.     Such  a  contract  is  usurious. 

Gaither  v.  The  Farmers  and  Mechanics'  Bank  of  Georgetown,  1  Peters,  43.  See 
Bank  of  the  United  States  v.  Owens,  2  Pet.  257 ;  Bank  of  the  United  States  v.  Wag- 
gener,  9  Peters,  378  •  Northampton  Bank  v.  Allen,  10  Mass.  284  ;  State  Bank  v. 
Ayers,  2  Halst.  130. 


284  USURY. 

(C)  What  Agreements  or  Contracts  deemed  usurious,  &c. 

Taking  interest  in  advance,  upon  the  discount  of  a  note  in  the  usual 
course  of  business  by  a  banker,  is  not  usury. 

Thornton  v.  The  Bank  of  Washington,  3  Peters,  40.  See  Renner  v.  The  Bauk  of 
Columbia,  9  Wheat.  581  ;  Fletcher  v.  The  Bank  of  the  United  States,  8  Wheat.  338. 

The  requisites  to  form  a  usurious  transaction,  are,  1,  a  loan  of  money, 
either  express  or  implied  ;  2,  an  understanding  that  the  money  lent  shall 
be  returned;  3,  that  a  greater  interest  than  thatallowed  by  the  statute 
shall  be  paid.     There  must  also  be  an  intent  to  violate  the  law. 

Lloyd  v.  Scott,  4  Peters,  205. 

When  a  security  for  the  payment  of  money  is  in  its  inception  uncon- 

taminated  with  usury,  it  is  not  rendered  usurious  by  an  ex  post,  facto 

agreement  for  a  greater  sum  than  the  statute  allows  for  a  forbearance. 

°Bush  v.  Livingston,  2  Caines'  C.  C.  in  Err.  06  ;  Pollard  v.  Baylors,  6  Munf.  433  ; 

Thompson  v.  Woodbridge,  8  Mass.  256. 

Where  a  note  is  given  for  an  antecedent  debt,  it  is  not  usurious  to  in- 
clude the  creditor's  reasonable  expenses  incurred  in  obtaining  the  note. 

Kent  v.  Philps,  2  Day's  Cas.  483. 

Where  a  judgment  creditor  agreed  with  his  debtor  that  the  sale  should 
be  postponed  eighteen  days,  in  consideration  that  the  latter  would  pay 
him  a  certain  sum  more  than  the  legal  interest ;  it  was  holden  that  this 
agreement  was  usurious  under  the  statute. 

Carter  v.  Brand,  Cam.  &  N.  28. 

A  premium  for  delay  of  payment,  although  secured  by  a  separate  in- 
strument, makes  the  contract  usurious. 

Glisson  v.  Newton,  1  Ilayw.  336. 

A  sale  of  stock  made  to  a  man  in  necessitous  circumstances,  at  a  price 
much  above  the  market  price,  is  to  be  considered  as  a  covered  loan  at 
usurious  interest. 

Anon.,  2  Desaus.  333. 

An  agreement  to  take  more  than  legal  interest  for  a  loan  of  money,  is 
usurious,  though  no  unlawful  interest  be  taken. 

Clark  v.  Bageley,  3  Halst,  233. 

A  security  for  the  loan  of  money,  upon  which  usurious  interest  has 
been  received,  is  not  void  by  the  statute  of  usury,  unless  usurious  interest 
were  reserved  by  the  original  contract. 

Gardner  v.  Flagg,  8  Mass.  101 ;  Thompson  v.  Woodbridge,  8  Mass.  250. 

If  a  banking  company  at  one  place,  take  notes  payable  in  the  bank- 
notes of  a  bank  located  at  another  place,  and,  upon  the  renewal  of  such 
notes,  take  a  premium  equal  to  the  difference  between  that  and  other 
money,  it  is  not  usurious. 

Portland  Bank  v.  Storer,  7  Mass.  433. 

Where  money  was  loaned  and  secured  by  a  transfer  of  stock,  and  it 
was  a  condition  of  the  loan  that  the  lender  should  have  the  option,  either 
to  retain  the  stock  and  dividends,  at  the  market  value  of  the  stock  at  the 
time  the  loan  was  made,  or  to  receive  back  his  money  with  interest,  at 
the  time  appointed  for  its  payment ;  held,  that  this  rendered  the  contract 

usurious. 

Cleaveland  v.  Lodcr,  7  Paige,  557. 

When  judgment  has  been  rendered  in  an  action  brought  on  a  usurious 
contract,  it  cannot  be  avoided  for  that  cause ;  nor  can  a  new  contract,  en- 


USURY.  285 

(D)  What  Hazard  will  bring  an  Agreement  out  of  the  Statute. 

tered  into  between  the  parties  to  secure  the  payment  of  such  judgment, 
be  avoided  as  usurious. 

Bearce  v.  Barstow,  9  Mass.  45;  Thatcher  v.  Gammon,  12  Mass.  2G8. 

If  a  debtor,  in  consideration  that  the  mortgagee  will  make  a  mortgage 
payable  at  the  residence  of  the  mortgagor,  instead  of  the  place  of  residence 
of  the  mortgagee,  agrees  to  allow  him  the  difference  of  exchange  between 
the  two  places,  the  mortgage  is  not,  for  this  reason,  usurious,  unless  this 
contrivance  has  been  adopted  to  evade  the  statute. 

"Williams  v.  Houce,  7  Paige,  581.0 

(D)  What  kind  of  Hazard  or  Casualty  will  bring  an  Agreement,  &c,  out  of  the 

Statute  of  Usury. 

It  has  been  held,  that  if  principal  and  interest  be  in  hazard  upon  a 
contingency,  it  is  no  usury,  though  the  interest  do  exceed  the  allowed  rates 
per  cent.  And  when  there  is  a  hazard  that  the  plaintiff  may  have  less 
than  his  principal,  it  is  no  usury. 

Show.  8,  Mastin  v.  Abdee. 

Thus,  if  S  lend  100?.  to  have  1207.  at  the  year's  end  upon  casualty,  if 

the  casualty  goes  to  the  interest  only,  and  not  to  the  principal,  it  is  usury  ; 

for  the  party  is  sure  to  have  the  principal  again,  come  what  will :  but  if 

the  interest  and  principal  are  both  in  hazard,  it  is  not  then  usury.     Per 

Dodderidge,  J. 

Cro.  Ja.  507,  pi.  20,  Roberts  v.  Trenayne  ;  ||  S.  C.  noin.  Roberts  v.  Tremoile,  2  Roll. 
R.  47 ;  and  see  Wortley  v.  Pit,  1  Ves.  1G4;||   {Addis.  125,  Phillip  v.  Kirkpatrick.} 

(3  In  Kentucky,  A  B  loaned  to  C  D  $37  50  in  specie,  when  the  paper 
of  the  Bank  of  the  Commonwealth  was  at  a  depreciation  of  two  for  one, 
for  which  C  D  executed  his  note  for  $90  payable  in  the  paper  of  the  Bank 
of  the  Commonwealth,  in  one  year  after  the  date.  Held,  that  this  was 
not  usurious,  because  A  B  risked  the  prospective  value  of  the  paper. 

Wilson  v.  Kilburn,  1  J.  J.  Marsh.  59G.    See  Talbot  v.  Warfield,  3  J.  J.  Marsh.  84.0 

In  debt  upon  an  obligation  of  507.  the  defendant  pleaded  the  statute, 
and  shoived  that  it  tvas  agreed  between  the  plaintiff  and  defendant,  14th 
December,  that  the  plaintiff 'should  lend  the  defendant  307.  to  be  repaid  the 
first  of  June  following,  and  the  iplamtiff  should  have  37.  for  the  forbear- 
ance, if  the  plaintiff's  son  should  be  then  living  :  and  if  he  died,  then  to 
pay  but  267.  of  the  principal  money.  The  court  inclined  that  it  was 
within  the  statute  of  usury,  whereupon  the  plaintiff,  who  had  demurred, 
became  nonsuit. 

Moor,  397,  pi.  528,  Reynolds  v.  Clayton.  All  the  court  held,  upon  the  two  statutes 
of  37  II.  8,  and  13  Eliz.,  that  the  bond  was  void,  because  it  appears  to  be  made  by 
corrupt  means  to  have  more  than  10/.  per  cent.,  which  the  statute  of  37  II.  8  intended 
to  punish.  And  by  the  proviso  it  appears  that  the  intent  was,  if  one  teas  indebted  to 
another,  truly  without  loan  and  intention  of  usury,  then  in  such  case  bonds  and  convey- 
ances of  land  for  securing  the  true  debt,  are  out  of  the  said  statute  ;  but  if  there  is  a  bor- 
rowing of  money,  and  a  communication  for  interest,  the  device  to  be  beyond  the  rate 
of  10/.  per  cent,  is  fraudulent  and  within  the  said  statute,  otherwise  the  statute  would 
be  vain  ;  for  he  might  as  well  have  made  the  condition,  that  if  twenty  persons,  or  any 
of  them,  should  be  living  at  the  day,  &a.,  then  he  should  have  33/.  And  of  this  opi- 
nion were  Popham,  C.  J.,  of  B.  R.,  and  Periam,  Ch.  B.  2  And.  15,  pi.  8,  S.  C;  5 
Rep.  70,  Clayton's  case,  S.  C,  resolved  that  it  was  a  usurious  contract. 

So,  where  A  agreed  with  J  S  to  give  him  107.  for  the  forbearance  of 
207.  for  a  year,  if  B  his  son  were  then  alive  ;  it  was  held  by  three  justices 


286  USURY. 

(D)  What  Hazard  will  bring  an  Agreement  out  of  the  Statute. 
(Glanvil  absente)  to  be  usury,  by  reason  of  the  corrupt  agreement,  and  it 
is  the  intent  makes  it  so  or  not  so. 

Cro  Eliz.  G42,  pi.  43,  C.  B.,  Button  v.  Downham.     ||  See  Lamego  v.  Gould,  Burr. 
715.11  i  i 

Likewise,  where  the  obligor  was  bound  in  a  bond  of  300?.  conditioned 
to  pay  22?.  10s.  premium  at  the  end  of  the  first  three  months  after  the  date, 
&c,  and  6d.  in  the  pound  at  the  end  of  six  months,  as  a  further  premium, 
together  with  the  principal  itself,  in  case  the  obligor  be  then  living  ;  but  if 
he  dies  within  that  time,  then  the  principal  to  be  lost;  this  was  adjudged 
a  usurious  contract,  because  there  was  a  possibility  that  the  obligor  might 
live  so  long ;  and  there  is  an  express  provision  to  have  the  principal  again. 
3  Salk.  390,  pi.  3,  Mason  v.  Abdy ;  Comb.  125,  S.  C. 

But,  where  the  bargain  is  merely  casual,  and  the  whole  depends  on  a 
contingency,  there  the  contract  is  not  usurious.     Thus — 

Mr.°Spencer  being  in  possession  of  an  estate  of  7000?.  a  year,  and  of  a 
personal  estate  in  goods  and  plate,  &c,  worth  20,000?.,  and  owing  about 
20,000/.  to  tradesmen,  being  about  thirty  years  of  age,  of  a  hale  constitu- 
tion, but  impaired  by  irregularity,  and  the  Duchess  of  Marlborough,  his 
grandmother,  being  then  seventy-eight,  and  of  a  good  constitution,  made 
the  defendant  a  proposal,  that  for  5000?.  paid  down,  he  would  engage  to 
pay  10,000?.  if  he  survived  the  duchess,  which  after  some  deliberation 
was  accepted  by  the  defendant ;  and  Mr.  Spencer  gave  him  a  bond  for  the 
payment  of  10,000?.  in  six  months  after  the  death  of  the  duchess,  in 
case  he  should  be  then  living.  The  duchess  lived  six  years  after,  and 
then  died,  giving  Mr.  Spencer  by  her  will  a  very  considerable  estate. 
Then  Mr.  Spencer  confessed  a  judgment  to  the  defendant  for  10,000?., 
and  afterwards  paid  him  2000?.  in  part  of  it,  and  then  died,  about  a  year 
and  eight  months  after  the  duchess.  A  bill  was  brought  to  be  relieved 
against  this  demand,  upon  payment  of  the  principal  sum  with  legal  interest, 
on  account  of  its  being  an  unconscionable  bargain,  and  against  the  public 
good. 

Earl  of  Chesterfield  et  al.,  Executors  of  Mr.  John  Spencer,  v.  Sir  Abraham  Jansen, 
MS  Rep  in  Chanc.  Trin.  24  G.  2  ;  and  see  the  case  very  fully  reported  in  1  Atk.  301 ; 
[2  Ves.  125,  S.  C. ;  1  Wils.  286,  S.  C. ;]  {5  Ves.  J.  27,  Wharton  v.  May,  S.  P. }  ||  A 
post  obit  bond,  though  a  questionable  security,  seems  not  usurious.  1  Anst.  7  ;  1  H. 
Black.  94;  5  Ves.  27.  || 

Lord  Chancellor  called  to  his  assistance  Lord  Chief  Justice  Lee,  Lord 
Chief  Justice  Willes,  Sir  John  Strange,  Master  of  the  Rolls,  and  Mr.  Jus- 
tice Burnet ;  who  gave  their  opinions  in  Hil.  term,  1750,  that  no  contract 
can  be  fraudulent  within  the  statute,  where  it  is  not  for  the  forbearance. 
There  may  be  many  contracts  which  this  court  sets  aside,  though  not  usu- 
rious, as  marriage-brokage  bonds,  placc-brokage  bonds,  &c,  but  here  ap- 
pears no  fraud  or  imposition  in  this  case,  and  the  party  himself  has  con- 
firmed it :  This  was  a  mere  contingency,  and  the  whole  money  might  have 
been  lost:  it  is  a  bargain  of  chance,  and  a  mere  wager;  and  the  relief 
prayed  by  the  plaintiffs  was  refused. 

So,  where  A  delivered  to  B  100?.,  who  by  indenture  covenanted  with  A 
to  pay  to  every  one  of  A's  children  which  then  tvere  and  should  be  living,  at 
ten  years'  end,  80?.,  A  having  then  five  daughters ;  and  for  assurance 
mortgaged  a  manor,  and  was  bound  in  a  statute  of  500?. ;  it  was  adjudged 
not  to  be  usury,  but  a  mere  casual  bargain.  But  if  it  had  been  to  pay 
400?.  at  ten  years'  end,  if  any  were  living,  then  it  had  been  a  greater 


USURY.  287 

(E)  In  what  Cases  Securities  shall  be  avoided. 

doubt ;  or,  if  it  had  been  to  pay  300/.  if  any  were  living  at  one  or  two 
years'  end,  that  had  been  usury,  because  of  the  probability  that  one  of 
them  would  continue  alive  for  so  short  a  time ;  but  in  ten  years  are  many 
alterations. 
Cro.  Eliz.  741,  pi.  15,  Bedingfield  v.  Ashley. 

But,  where  M  lent  C  1507.,  for  repayment  of  which  C  leased  a  close  to 
Mfor  sixty  years,  to  begin  at  the  end  of  tivo  years,  upon  condition  that  if 
he  paid  the  150/.  at  the  end  of  the  two  years,  the  lease  to  be  void  ;  and  it 
was  agreed  that,  for  the  deferring  and  giving  a  day  of  payment  for  the 
two  years,  0  should  pay  to  M for  interest  221.  10$.  quarterly,  if  31  should 
so  lo?ig  live  ;  in  pursuance  of  which  agreement  M  lent  the  1507.  and  A 
made  the  lease,  and  granted  by  fine  to  M  the  rent  of  221. 10s.,  to  be  paid 
quarterly,  if  M  should  so  long  live  ;  this  was  held  to  be  a  usurious  con- 
tract, for  by  intendment  M  might  have  lived  above  the  two  years,  and  it 
was  an  apparent  possibility,  that  he  should  receive  that  consideration, 
whereby  she  is  within  the  statute ;  and  also  that  the  lease  taken  for  the 
payment  of  the  principal  money,  and  not  for  any  part  of  the  usury,  is 
within  the  statute,  because  it  is  for  security  of  money  lent  upon  interest, 
and  for  the  securing  of  that  which  the  statute  intended  M.  should  lose. 

Cro.  Ja.  507,  pi.  20,  Roberts  v.  Trenayne ;  ||S.  C.  nom.  Roberts  v.  Tremoile,  2  Roll. 
R.  47.|| 

||  A  bond  fide  contract  for  an  annuity  for  life  or  lives  is  clearly  ex- 
empted from  the  operation  of  the  statute  of  usury,  and  this,  although 
the  annuity  is  made  redeemable  at  the  option  of  the  grantor,  for  the  gran- 
tee runs  a  hazard  of  never  receiving  back  an  equivalent  for  his  principal. 

Fountain  v.  Grimes,  Cro.  Ja.  252 ;  Rex  v.  Brury,  2  Lev.  7  ;  Murray  v.  Harding, 
Black.  R.  859  ;  3  Wils.  390 ;  Richards  v.  Brown,  Cowp.  770  ;  and  see  1  Atk.  340,  3 
Atk.  280. 

And  a  covenant  by  the  grantor  to  insure  the  life  on  which  the  annuity 
depends,  and  to  assign  the  policy  to  the  grantee,  seems  not  to  render  the 
contract  usurious. 

In  re  Naish,  7  Bing.  150. 

An  annuity  for  a  term  of  years  certain,  which  will  repay  to  the  grantee 
the  amount  of  his  purchase-money,  and  more  than  51.  per  cent,  interest, 
is  usurious ;  for  the  principal  in  such  case  is  not  in  hazard,  as  in  the  case 
of  an  annuity  for  life. 

Fereday  v.  Wightwick,  1  Russ.  &  M.  45  ;  and  see  3  Barn.  &  A.  GG6.|| 

(E)  In  what  Cases  Securities  shall  be  forfeited  or  avoided  on  account  of  Usury. 

Here  it  is  to  be  premised,  that  it  is  not  material  whether  the  payment 
both  of  the  principal  and  also  of  the  usurious  interest  be  secured  by  tin 
same  or  by  different  conveyances,  but  all  writings  whatsoever  for  the 
strengthening  of  such  a  contract  are  void. 

Hawk.  P.  C.  c.  82,  g  21 ;  ||3  Barn.  &  C.  273.||  {In  Pennsylvania,  the  security  is  not 
void,  but  the  plaintiff  may  recover  the  just  principal  with  lawful  interest.  2  Ball.  92, 
Wycoff  v.  Longhead.} 

"Where  a  bond  is  made  for  more  than  legal  interest,  but  at  the  payment 
the  obligee  takes  only  legal  interest ;  he  shall  not  be  punished  for  the  con- 
tract ;  but  perhaps  the  bond  shall  be  void. 

2  Le.  39,  arg.  in  Van  Henbeck's  case. 

Thus — where  A  borrowed  of  B  807.,  and  tvas  bound  in  a  bond  to  pay 


288  USURY. 

(E)  In  what  Cases  Securities  shall  be  avoided. 

him  90?.  at  the  end  of  the  year  ;  per  cur. — Though  the  90?.  was  tendered, 
and  B  did  tell  the  same,  yet  if  B  takes  but  80?.  it  is  not  usury  within  5 
Eliz.  to  make  a  treble  forfeiture ;  but  yet  in  that  case  the  obligation  itself 
is  void.  The  bond  is  void  presently,  and  if  he  receives  excessive  interest, 
he  shall  forfeit  the  treble  value.     Per  Clerk,  J. 

4  Le.  43,  pi.  117,  Brown  v.  Fulsby ;  3  Le.  205,  pi.  200,  Body  v.  Tassel. 

/3 Where  a  partial  payment  was  made  on  account  of  a  note,  for  a  sum  of 
money  borrowed  on  usurious  interest ;  held  that  the  usury  was  complete. 

Musgrove  v.  Gibbs,  1  Dall.  216  ;  Wycoff  v.  Longhead,  2  Dall.  92 ;  Turner  v.  Cal- 
vert, 12  S.  &  R.  46. 

In  New  York,  where  there  is  a  usurious  agreement  upon  the  loan  of 
money,  it  is  immaterial  whether  the  unlawful  excess  be  actually  paid,  or 
only  promised  to  be  paid ;  in  either  case  the  contract  is  void. 

Hammond  v.  Hopping,  13  Wend.  505. £( 

||  And  on  the  other  hand,  if  usurious  interest  is  not  contracted  for,  the 
bond  will  not  be  rendered  void,  although  it  may  in  fact  be  taken.  In 
order  to  constitute  usury,  so  as  to  make  the  assurance  void,  and  also  to 
subject  the  party  to  penalties,  there  must  be  both  an  usurious  contract, 
and  a  usurious  taking  in  pursuance  of  it,  of  money  or  money's  worth. 

Scott  v.  Brest,  2  Term  R.  241 ;  Barbe  q.  t.  v.  Parker,  1  H.  Bl.  283  ;  Ex  parte  Jen- 
nings, 1  Madd.  11.  331 ;  and  see  1  Saund.  295,  note  l.|| 

Where  the  first  contract  is  not  usurious,  it  shall  never  be  made  so  by 
matter  ex  post  facto.     Per  Williams,  J. 
Bulstr.  17. 

Thus — in  debt  upon  an  obligation,  where  the  statute  of  usury  was 
pleaded,  it  was  said  by  Pophain  upon  the  evidence,  that  if  a  man  lends 
100?.  for  a  year  to  have  101.  for  the  use  of  it,  if  the  obligor  pays  the  10/. 
twenty  days  before  it  be  due,  that  does  not  make  the  obligation  void,  be- 
cause it  was  not  corrupt.  But  if,  upon  making  the  obligation  it  had  been 
agreed  that  the  10?.  should  have  been  paid  within  the  time,  that  would  have 
been  usury,  because  he  had  not  the  100?.  for  the  whole  year,  when  the 
10?.  wras  to  be  paid  within  the  year  ;  and  a  verdict  was  given  accordingly. 

Noy,  171,  Dalton's  case,  S.  P.,  and  resolved  by  the  whole  court  that  the  taking  th<? 
use-money  within  the  year  shall  not  avoid  the  obligation,  and  is  not  usury  within  the 
statute,  because  it  was  not  usurious  at  the  beginning.  And  judgment  for  the  plain- 
tiff.    Bulstr.  17. 

Likewise,  if  a  man  makes  a  usurious  contract  with  another,  and  gives 
him  unlawful  interest,  and  agrees  to  give  him  a  bond  for  the  principal, 
and  after,  by  a  subsequent  agreement,  gives  a  bond  for  the  sum  lent  to 
J  S,  to  ivhom  the  lender  owes  so  much,  in  satisfaction  of  his  debt ;  this 
bond  is  not  voidable  by  the  statute.     Per  Holt,  C.  J. 

7  Mod.  119,  The  Queen  v.  Sewel,  alias  Beaus. 

So,  if  a  man  lend  money  on  a  legal  interest,  and  after  a  subsequent 
agreement  be  made  for  more  interest,  which  is  usury;  that  will  not  avoid 
the  first  contract.     Per  Holt,  C.  J. 

Far.  119,  The  Queen  v.  Sewel,  alias  Beaus.  For  the  words  of  the  statute  are,  "  That 
all  assurances  for  the  payment  of  any  principal,  &c,  whereupon  or  whereby  there  shall 
be  reserved  or  taken  above  the  rate  of  5/.  in  the  hundred,  shall  be  void."  { 1  II.  Bl. 
462,  Gray  v.  Fowler,  S.  P.  |  I 

{L  gave  a  bond  and  mortgage  to  E,  who,  after  the  day  of  payment,  de- 
manded the  money,  $6222  being  then  due  for  principal  and  interest.  L 
agreed  with  him  to  pay  $5G00  in  cash,  and  give  his  notes  for  the  residue ; 


USURY.  289 

(E)  In  what  Cases  Securities  shall  be  avoided, 
and  then  applied  to  B  to  advance  the  $5600  to  E,  agreeing  to  repay  it 
in  90  days,  with  a  premium  of  $400,  the  whole  to  be  secured  by  an  as- 
signment from  E  of  the  bond  and  mortgage.  This  arrangement  was 
accordingly  made.  On  a  bill  by  B  against  L  to  foreclose,  it  was  held 
that  the  mortgage,  having  been  originally  given  on  a  good  and  bond  fide 
consideration,  could  not  be  impeached  on  account  of  the  subsequent 
usurious  contract  between  B  and  L,  but  that  B  was  not  entitled  to  more 
than  the  sum  actually  paid  with  legal  interest. 

2  Cain.  Er.  GO,  Bush  v.  Livingston.} 

But,  if  a  second  bond  be  made  after  the  forfeiture  of  a  former,  and  con- 
ditioned for  the  receipt  of  interest  according  to  the  penalty  of  the  forfeited 
bond,  this  is  as  much  within  the  statute,  as  if  it  had  been  made  before  the 
forfeiture  ;  for  if  such  a  practice  should  be  allowed,  nothing  could  be  more 
easy  than  to  elude  the  statute  ;  and  though  the  whole  penalty  be  due  in 
strictness  to  the  obligee,  yet  the  true  principal  debt  is  in  conscience  no 
greater  after  the  forfeiture  of  the  bond  than  it  was  before. 

Hawk.  P.  C.  c.  82,  \  23. 

||  Where  the  grantor  of  an  annuity,  being  desirous  to  redeem  it,  agreed 
with  the  grantee  to  discount  for  him  a  bill  of  exchange  for  the  purpose  of 
producing  the  money,  and  the  grantor  accordingly  drew  a  bill  for  5000?. 
payable  at  three  years,  and  it  was  discounted  as  follows :  The  grantee 
took  4083/.  6s.  8ti  as  the  amount  of  the  purchase-money  and  arrears  of 
the  annuity,  and  paid  116?.  13s.  4d.  to  the  grantor,  and  retained  750?.  as 
the  discount  for  three  years  on  5000?.,  and  then  immediately  the  bill  was 
given  up  and  a  bond  signed  by  the  grantor  and  two  others  to  the  grantee, 
payable  in  three  years,  for  the  sum  of  5000?. ;  it  was  held,  that  this  could 
not  be  considered  as  a  fair  transaction  of  ordinary  discount,  nor  as  a 
bond  fide  purchase  of  the  annuity,  but  that  it  was  a  usurious  transaction  ; 
and  this,  although  the  jury  declared  they  did  not  believe  the  grantee 
thought  he  was  acting  contrary  to  law. 

Marsh  v.  Martindale,  3  Bos.  &  Pul.  154.  || 

A  bond  made  to  secure  a  just  debt  payable  with  lawful  interest,  shall 
not  be  avoided  by  reason  of  a  corrupt  agreement  between  the  obligors,  to 
which  the  obligee  was  no  way  privy :  as,  where  A,  being  indebted  to  B 
in  100?.,  agrees  to  give  him  30?.  for  the  forbearance  of  that  100?.  for  a 
year,  and  gives  him  a  bond  for  60?.  for  payment  of  the  30?.,  and  for  the 
payment  of  the  100?.  enters  into  a  bond  of  200?.  together  with  B  for  the 
payment  of  a  true  debt  of  100?.  due  from  B  to  C. 

Hawk.  P.  C.  c.  28,  |  11. 

So,  where  W  was  indebted  in  100?.  to  A  upon  a  usurious  contract  on  a 
bond,  and  A  being  indebted  to  E,  transferred  the  debt  to  E,  and  W  became 
bound  for  the  same  usurious  debt  to  E,  whose  debt  was  just,  and  he  ignorant 
of  the  usury  ;  it  Avas  adjudged,  upon  great  deliberation,  that  the  obligation 
made  by  W  to  E  was  not  avoidable  for  the  usurious  contract  made  be- 
tween W  and  A,  because  it  was  given  to  E  for  a  true  debt,  and  he  knew 
nothing  of  the  usury,  though  the  ground  between  A  and  W  was  usurious. 

Moor,  752,  pi.  1035,  Ellis  v.  Warnes. 

Likewise,  an  assurance  made  in  pursuance  of  a  fair  agreement  for  such 
interest  as  is  allowed  by  the  statute,  shall  not  be  avoided  by  the  fault  of 

Vol.  X.— 37  2  B 


290  USURY. 

(E)  In  what  Cases  Securities  shall  he  avoided. 

the  scrivener,  who  draws  it  up  in  such  a  manner  as  to  bring  it  within  the 
express  letter  of  the  statute :  As,  where  the  parties  agree,  that  51.  shall 
be  paid  for  the  loan  of  100?.  for  one  year,  and  the  scrivener,  in  drawing 
the  bond  for  it,  doth  without  the  knowledge  of  the  parties,  who  are  illite- 
rate persons,  make  the  51.  payable  at  the  end  of  half  a  year :  or,  where, 
on  the  fair  loan  of  100?.  agreed  to  be  paid  with  common  interest,  a  mort- 
gage is  made  for  the  100?.  with  a  proviso,  that  it  shall  be  void  on  pay- 1 
ment  of  1051.  at  the  end  of  one  year,  without  any  covenant  for  the 
mortgagor  to  take  the  profits  till  default  be  made  of  payment,  so  that  in 
strictness  the  mortgagee  is  entitled  both  to  the  interest  and  profits. 

Hawk.  P.  C.  c.  82, 1  17  ;  [Murray  v.  Harding,  supra,  287.]  ||See  Glasford  v.  Laing, 
1  Camp.  148.11 

It  is  to  be  observed,  that  a  fine  levied,  or  judgment  suffered,  in  pursu- 
ance of  a  usurious  contract,  may  be  avoided  by  an  averment  of  the  corrupt 
agreement,  as  well  as  any  common  specialty,  or  parol  contract.  And  in 
an  assumpsit  if  it  appear,  either  upon  the  evidence,  or  from  the  plaintiff's 
own  express  showing  in  his  declaration,  that  the  contract  was  usurious,  he 
cannot  recover.  But  a  specialty  cannot  be  avoided  by  usury  appearing 
on  evidence  or  on  the  face  of  the  condition,  but  it  must  be  pleaded. 

Hawk.  P.  C.  c.  82,  \  20.  {But  a  note  which  is  originally  fair  cannot  be  impeached 
in  the  hands  of  an  innocent  holder  on  account  of  a  subsequent  usurious  transfer. 
1  Bay.  486,  Foltz  v.  Mey ;  1  East,  92,  Parr  v.  Eliason  ;  3  Esp.  Hep.  210,  S.  C.  And 
if  a  note  given  by  A,  for  an  usurious  consideration  be  endorsed  to  C,  for  a  valuable 
consideration,  without  notice  of  the  usury,  and  afterwards  A  gives  to  C  a  new  security 
for  the  amount,  such  new  security  is  good.  8  Term.  390,  Cuthbert  v.  Haley;  3  Esp. 
Ttep.  22,  S.  C. ;  2  Cain.  150,  Stewart  v.  Eden.  Vide  Ellis  v.  Warnes,  supra,  p.  289; 
and  4  Esp.  Rep.  11,  Turner  v.  Hulmo.} 

If  a  judgment  be  given  upon  a  usurious  contract,  and  it  be  part  of 
the  agreement  to  have  a  judgment,  yet  the  defendant  may  avoid  such 
judgment  by  audita  querela,  or  by  scire  facias  brought  on  the  same. 

Vin.  Abr.  tit.  Usury,  304. 

Where  A  mortgaged  to  B,  on  a  usurious  contract  for  100?.,  and  before 
the  day  of  payment  B  is  ousted  by  O,  and  B  brings  an  action  against  G, 
C  cannot  plead  the  statute  of  usury;  for  he  has  no  title,  the  estate  being 
void  against  the  mortgagor.     Per  Periam. 

Le.  307,  p.  427,  Carter  v.  Claycole. 

But,  where  A  lent  B  45?.  on  a  pledge  of  jewels,  and  it  was  agreed  to 
pay  9?.  for  it  for  a  year ;  afterwards  B  gave  a  bond  for  the  same  money ; 
per  Holt,  at  Nisi  Prius,  It  is  a  question  if  the  bond  be  void  or  not. 

7  Mod.  119,  The  Queen  v.  Sewel,  alias  Beaus. 

[A  bill  of  exchange  given  on  usurious  consideration  is  void  in  the 
hands  of  an  innocent  endorsee  for  valuable  consideration  without  notice 
of  the  usury. 

Lowe  v.  "Waller,  Dougl.  736.  ] 

I  An  absolute  deed  of  conveyance  of  real  estate,  upon  trust  to  sell  and 
pay  certain  debts,  cannot  be  avoided  on  the  ground  that  the  debts  to  be 
paid  are  usurious. 

1  Johns.  Ca.  158,  Denn  v.  Dodds.} 

||  And  even  though  the  bill  were  lawful  in  its  original  inception,  it  has 


USURY.  291 

(E)  In  what  Cases  Securities  shall  be  avoided. 

been  held,  that  an  innocent  holder  cannot  recover  upon  it  if  he  has  to 
make  title  through  an  endorsement  vitiated  by  usury. 

Lowes  v.  Mazarredo,  1  Stark.  Ca.  385 ;  sed  vide  Parr  v.  Eliason,  1  East,  92. 

And  where  an  innocent  holder  being  in  possession  of  a  bill  vitiated  by 
usury,  on  being  informed  of  it  took  a  fresh  bill  in  lieu  of  it,  drawn  by  one 
of  the  parties  to  the  original  usury,  and  accepted  by  a  third  person  for 
the  accommodation  of  the  other  party,  it  was  held,  that  he  could  not  re- 
cover on  the  substituted  bill. 
Chapman  v.  Black,  2  Barn.  &  A.  588  ;  and  see  8  Term  R.  390. 

However,  the  mere  receiving  an  exorbitant  sum  by  an  agent  for  get- 
ting a  bill  discounted  for  the  acceptor,  the  agent  himself  being  no  party 
to  the  bill,  will  not  affect  the  bill  in  the  hands  of  the  bond  fide  holder, 
who  only  receives  the  legal  discount ;  and  such  holder  may  consequently 
sue  the  acceptor,  since  there  is  here  no  usurious  loan  of  money  by  the  party 
discounting  the  bill.  If  the  agent  receiving  the  commission  had  himself 
advanced  the  money,  it  would  have  been  otherwise. 

Dagnall  v.  Wigley,  11  East,  43. 

But  now  by  the  58  G.  3,  c.  93,  it  is  enacted,  that  no  bill  of  exchange 
or  promissory  note,  although  it  may  have  been  given  for  a  usurious  con- 
sideration or  upon  a  usurious  contract,  shall  be  void  in  the  hands  of  an 
endorsee  for  valuable  consideration,  unless  such  endorsee  had,  at  the 
time  of  discounting  or  paying  such  consideration  for  the  same,  actual 
notice  that  such  bill  of  exchange  or  promissory  note  had  been  ori^inallv 
given  tor  a  usurious  consideration,  or  upon  a  usurious  contract. 

When  usurious  securities  are  destroyed  by  mutual  consent,  a  subsequent 

agreement  by  the  borrower  to  pay  the  lender  the  amount  due  for  legal 

principal  and  interest  is  founded  on  sufficient  consideration,  and  binding. 

Barnes  v.  Hedley,  2  Taunt.  184;  1  Camp.  165,  notd;  sed  vide  Forrest,  72;  1  Camp. 
157 ;  and  see  1  II.  Black.  4G2. 

But  if  the  security  extends  to  the  usurious  interest  it  is  not  valid. 
Preston  v.  Jackson,  2  Stark.  237 ;  Wicks  v.  Gogerly,  1  Ryan  &  Moo.  123. 

In  one  case  the  Court  of  C.  B.  refused  to  set  aside  a  judgment  and  exe- 
cution for  usury,  unless  the  defendant  paid  the  legal  principal  and  interest. 
Hindle  v.  O'Brien,  1  Taunt.  413  ;  and  see  1  Bos.  &  Pul.  270. 

But  the  Court  of  K.  B.  have  expressed  their  dissatisfaction  at  this 
decision,  and,  in  setting  aside  a  judgment  founded  on  a  usurious  warrant 
of  attorney,  refused  to  impose  the  terms  of  payment  of  the  legal  debt. 

Roberts  v.  Goff,  4  Barn.  &  Add.  92. 

Where  securities  are  given  partly  for  a  legal  and  partly  for  a  usurious 
debt,  the  usury  taints  the  whole  security,  and  the  holder  cannot  recover 
on  it  for  any  part  of  the  amount. (a) 

Harrison  v.  Ilannel,  5  Taunt.  780 ;  1  Marsh,  349.  (a)  The  security  in  such  ease  is 
void  ;  but  the  bond Jidc  debt  is  not  extinguished  by  being  mixed  up  in  a  security  with 
a  usurious  debt.  Gray  v.  Fowler,  1  II.  Black.  402;  Phillips  v.  Cockayne,  3  Camp, 
119  ;  and  see  the  stat.  58  G.  3,  c.  93. 

Where  the  drawer  of  bills  payable  to  his  own  order  and  accepted,  hands 
them  over  endorsed  to  a  friend,  in  order  to  get  them  discounted,  and  he 
docs  so  by  allowing  usurious  interest  to  the  discounter,  and  the  bills  come 
into  the  hands  of  the  Crown  under  an  extent  against  the  discounter,  the 
Crown  cannot  recover  on  the  bills  against  the  acceptor;  for  the  transac- 


292  USURY. 

(F)  In  what  Cases  Penalties  shall  be  incurred. 

tion  is  in  substance  a  usurious  advance  of  money  by  the  discounter  to 
the  drawer,  through  his  friend,  and  the  bill  in  the  hands  of  the  Crown 
is  in  the  same  situation  as  in  those  of  the  discounter. 

The  King  v.  Ridge,  4  Price,  50.    The  statute  would  make  no  difference  in  this  case.|| 

(F)  In  what  Cases  a  Forfeiture  of  treble  Value  shall  be  incurred  on  account  of  Usury. 

Though  the  receipt  of  higher  interest  than  is  allowed  by  the  statute, 
by  virtue  of  an  agreement  subsequent  to  the  first  contract,  does  not  avoid 
an  assurance  fairly  made  and  agreeable  to  the  statute,  yet  it  subjects  the 
party  to  the  forfeiture  of  treble  value. 

Hawk.  P.  C.  c.  82,  §  12. 

But  the  receipt  of  interest  before  the  time  when  it  is  in  strictness  due, 
being  voluntarily  paid  by  the  debtor  for  the  greater  convenience  of  the 
creditor,  or  for  any  other  such  like  consideration,  without  any  manner  of 
corrupt  practice,  or  any  previous  agreement  of  this  kind  at  the  making  of 
the  first  contract,  does  not  make  the  party  liable  to  the  forfeiture  of  the 
treble  value. 

Hawk.  P.  C.  c.  82,  §  14. 

An  information  upon  the  statute  12  Car.  2,  c.  13,  set  forth  that  the  de- 
fendant, 16  November,  20  Car.  2,  lent  J  S  20?.  tiWJtme  next  following, 
and  that  afterwards,  (viz.,)  ad  finem  termini  prosdict.  he  took  of  the  said 
J  S,  corrupte  et  extorsive,  80s.  for  the  loan  thereof,  which  is  more  than 
the  statute  allows.  The  jury  found  against  the  defendant.  And  it  was 
moved,  that  this  corrupt  agreement  ought  to  be  within  the  statute  at  the 
making  of  the  contract,  and  not  at  the  end  of  the  term,  as  laid  in  the  in- 
formation. Twisden,  J.,  took  a  difference  upon  the  two  clauses  in  the 
statute,  that  if  the  lender  contracts  for  more,  so  that  the  agreement  is  cor- 
rupt at  the  time  of  the  loan,  all  the  assurance  is  void;  but,  if  he  contracts 
for  no  more  than  the  statute  allows,  but  will  afterwards  take  more,  the  as- 
surance shall  not  be  avoided,  but  the  party  shall  forfeit  the  treble  value. 
But  judgment  was  stayed  till  the  other  side  moved,  because  the  court  would 
advise. 

Kaym.  196,  The  King  v.  Allen. 

In  debt  upon  bond  the  defendant  pleaded,  that  after  the  making  of  the 
bond  the  defendant  corruptive  receipt  so  much,  viz.,  more  than  the  statute 
allows,  and  that  therefore  the  bond  was  void.  But  adjudged  upon  demur- 
rer, that  the  plea  is  not  good;  for  the  bond  here  was  not  for  the  payment 
of  money  (upon  or  for  usury),  as  the  words  of  the  statute  are;  but  for  any 
thing  appearing  to  the  contrary,  it  was  for  payment  of  a  just  debt,  and  so 
the  bond  was  good  when  it  was  made;  and  therefore  a  usurious  contract 
after  cannot  make  it  void ;  but  it  is  a  forfeiture  of  the  treble  value  by 
the  latter  clause  of  the  statute. 

Saund.  294,  Ferral  v.  Shaen.  ||  See  4  Burr.  2253  ;  Cowp.  114  ;  Dougl.  237  ;  3  Wils. 
2G1 ;  2  Black.  792;  3  Term  11.  538  ;||  3  Salk.  390,  pi.  4,  S.  P.  accordingly. 

A  (when  money  was  at  81.  per  cent.)  lends  money  and  takes  bond  for 
the  same,  and  then  the  statute  12  Car.  2  is  made,  and  he  will  continue 
the  interest  on  that  bond:  the  bond  shall  not  be  avoided  by  such  accept- 
ance of  interest,  but  the  party  shall  forfeit  the  treble  value  by  the  statute. 
Per  Twisden,  J. 

Kaym.  197,  The  King  v.  Allen. 

So,  in  debt  on  an  obligation  conditioned  to  pay  by  a  certain  day,  the 
defendant  pleaded  the  statute  12  Car.  2,  c.  13,  and  said  that  the  contract  ivas 


USURY.  293 

(G)  In  what  Cases  Relief  is  given  against  usurious  Contracts. 

usurious :   but  per  cur.  the  contract  being  made  after  the  bond  forfeited 
to  receive  interest  according  to  the  penalty,  which  was  double  the  princi- 
pal, it  doth  not  avoid  the  obligation  that  was  good  at  first,  but  only  sub- 
jects the  taker  to  other  penalties  ;  and  judgment  for  the  plaintiff,  nisi. 
3  Keb.  142,  pi.  13,  Radly  v.  Manning. 

||  On  the  other  hand,  if  a  man  contract  for  more  interest  than  the  sta- 
tute allows,  and  afterwards  take  only  legal  interest,  the  contract  is  void, 
but  the  penalty  is  not  incurred. 

Fisher  v.  Beasley,  Doug.  236 ;  1  W.  Saund.  295  a,  notd. 

As  the  penalty,  therefore,  is  not  incurred  till  more  than  legal  interest 
has  been  actually  taken,  the  time  for  bringing  the  action  (one  year  from 
the  offence  by  31  Eliz.  c.  5,  s.  5)  begins  from  the  receipt  of  the  usurious 
interest,  and  not  from  the  making  of  the  contract. 

Fisher  v.  Beasley,  Doug.  236 ;  1  W.  Saund.  295  a,  notd. 

Where  a  premium  is  actually  paid  at  the  time  of  the  contract,  and  5?. 
per  cent,  interest  is  agreed  to  be  paid,  the  offence  is  complete  on  receipt 
of  any  part  of  that  interest. 

Wade  v.  Wilson,  1  East,  195  ;  and  see  2  Bos.  &  Pul.  381. 

The  mere  taking  a  note  for  the  money  lent  with  usurious  interest  does 
not  complete  the  usury,  till  the  note  is  paid. 
Maddock  v.  Hammett,  7  Term  R.  184;  and  see  1  Camp.  445  ;  2  Camp.  53  ;  3  Barn. 

&C.  165.|| 

3  The  offence  of  usury  is  complete  when  any  thing  above  the  legal  rate 
of  interest  has  been  received  for  the  forbearance. 

Seawell  v.  Shomberger,  2  Murph.  200.  See  Fugate  v.  Ferguson,  1  Blackf.  366 : 
Breckenridge  v.  Churchill,  3  J.  J.  Marsh.  16. 

A  return  by  the  sheriff  of  satisfaction  to  an  execution  issued  on  a  judg- 
ment for  a  debt  infected  with  usury,  is  not  sufficient  evidence  of  the  re- 
ceipt of  usurious  interest,  to  charge  the  lender  in  an  action  for  a  penalty. 

Wright  v.  M'Gibbons,  2  Dev.  &  Bat.  474.£/ 

(G)  In  what  Cases  Relief  is  given  against  usurious  Contracts. 

It  has  been  said,  that  though  the  statute  does  not  go  so  far  as  to  make 
the  party  receiving  the  usurious  interest  liable  to  refund ;  yet  having  pro- 
hibited the  taking  beyond  such  a  sum,  and  avoided  the  contract,  the  tak- 
ing it  is  a  breach  of  the  statute ;  and  the  actual  receipt  of  the  money 
will  (in  a  court  of  equity)  make  him  liable  to  refund ;  the  wrong  being 
the  same,  whether  the  usurious  interest  hath  been  actually  paid  or  not. 

Cas.  temp.  Talb.  114,  Proof  v.  Ilines. 

Thus — where  A  entered  into  a  bond  to  B  for  a  sum  of  money,  to  pay  Gl. 
per  cent,  interest ;  afterwards  A  being  unable  to  pay  off  the  bond,  consented 
to  pay  10Z.  per  cent,  for  the  money,  and  continued  paying  at  that  rate  for 
fourteen  years:  B  died,  A  became  a  bankrupt;  and  the  assignees  of  A 
brought  a  bill ;  the  executors  of  B  were  decreed,  by  the  Master  of  the  Rolls, 
to  account;  and  that,  for  what  had  been  really  lent,  legal  interest  should  be 
computed  and  allowed,  and  what  had  been  paid  more  should  be  deducted 
out  of  the  principal  to  be  due  on  the  account ;  and  if  B  had  received  more 
than  what  was  due  with  legal  interest,  the  same  tobe  refunded  by  the  execu- 
tors, and  the  bond  to  be  delivered  up.  And  afterwards  the  Lord  Chan- 
cellor affirmed  the  decree  ;  but  said  he  did  not  determine  how  it  would  be-, 
had  all  the  securities  been  delivered  up ;  that  not  being  before  him. 

Cas.  temp.  Talb.  38,  Bosauquett  v.  Dashwood. 

2b2 


294  USURY. 

(G)  In  what  Cases  Relief  is  given  against  usurious  Contracts. 

The  court  decreed  money  to  the  plaintiff  against  the  defendant ;  albeit 
he  had  judgment  and  execution,  being  upon  the  point  of  usurious  con- 
tract. 

Toth.  231,  Langford  v.  Barnard. 

A  woman  resorted  to  gaming  places  at  court ;  and  by  supplying  persons 
of  quality  there  tvith  money,  made  great  profit ;  for  which  purpose  she^  bor- 
rowed much  money,  and  gave  the  lender  great  rewards  from  time  to  time  ; 
but  afterwards  she  borrowed  more,  and  being  arrested  for  this  last  money, 
gives  bond  and  judgment  for  it,  and  then  brings  a  bill  to  be  relieved 
against  the  security,  and  to  have  an  allowance  for  the  former  excessive 
premiums  which  she  had  given,  and  to  bring  the  defendant  to  an  account. 
The  defendant,  by  answer,  confessed  the  receipt  of  five  or  ten  guineas 
for  the  loan  of  ten  guineas  for  a  week  or  ten  days ;  but  insisted  that  the 
sums  so  received  ivere  paid  as  profit,  and  not  towards  satisfaction  of  the 
money  lent.  The  court  ordered  the  plaintiff  to  pay  principal,  interest, 
and  costs  at  law,  and  here,  or  the  bill  to  be  dismissed  with  costs ;  for 
that  it  would  not  interpose  or  meddle  with  play-debts,  or  things  of  this 
kind.     Per  Lords  Commissioners. 

2  Vern.  170,  pi.  156,  Taylor  et  al.  v.  Bell;  Bagnall  et  al.,  Ibid.  173.  Ld.  Hutchins 
said,  that  if  the  sureties  had  not  been  plaintiffs  as  well  as  the  woman,  he  would  not 
have  relieved  even  against  the  penalty.  Lord  Chancellor,  in  the  case  of  Bosanquett 
v.  Dash  wood,  said,  that  as  to  the  laws  relating  to  gaming,  the  court  would  not  inter- 
pose, because  gamesters  on  both  sides  are  equally  guilty,  and  in  such  cases  the  court 
will  stand  neuter ;  but  the  borrower  and  lender  are  not  in  the  view  of  gamesters. 
MS.  Rep. 

Upon  a  trust  ||trial||  at  Guildhall,  in  an  indebitatus  assumpsit  for  money 
received  to  the  use  of  the  plaintiff,  the  case  was,  The  plaintiff  was  co- 
obligor  with  J  S  to  the  defendant,  and  between  J  S  and  the  defendant  there 
was  a  iisurious  contract :  the  plaintiff  paid  part  of  the  money  to  the  obli- 
o-ee,  and  after  pleaded  the  statute  of  usury  upon  this  bond ;  which  is  ad- 
judged  a  usurious  bond ;  he  brought  this  action  for  the  money,  which 
lie  paid  before  the  bond  was  proved  usurious ;  and  the  question  was,  if 
the  action  lay ;  and  Holt,  C.  J.,  seemed  to  incline  strongly  that  it  did  not 
lie ;  for  here  there  was  a  payment  actually  made  by  the  plaintiff  to  the  de- 
fendant, in  satisfaction  of  this  usurious  contract ;  and  if  they  will  make 
such  contracts,  they  ought  to  be  punished ;  and  he  was  not  for  encourag- 
ing such  kinds  of  indebitatus  assumpsit ;  for  it  is  like  to  the  cases  of  bribes, 
ami  he  who  receives  them  ought  to  be  punished,  but  he  who  gives  them 
ourdit  not  to  be  encouraged  by  any  way  to  recover  his  money  again. 

Skin  411,  pi.  7,  Tomk'ms  v.  Barnctt;  1  Salk.  22,  S.  C,  though  said  to  be  coram 
Treby,  C.  J.,  and  that  Treby,  C.  J.,  allowed,  that  where  a  man  pays  money  on  a  mis- 
take in  an  account,  or  where  one  pays  money  under  or  by  a  mere  deceit,  it  is  reason- 
able he  should  have  his  money  again  ;  but,  where  one  knowingly  pays  money  upon 
an  illegal  consideration,  the  party  that  receives  it  ought  to  be  punished  tor  his  oifence  ; 
and  the  party  that  pays  it  is  particeps  criminis.  And  there  is  no  reason  that  he  should 
have  his  money  again  ;  for  he  parted  with  it  freely,  and  volenti  nonfit  injuria.  [See 
the  observations  on  this  case,  supra,  Vol.  i.]  ||tit.  Assumpsit,  (A);  and  see  Cowp. 
200  ;  1  Bro.  C.  11.  457  ;  Doug.  696,  overturning  this  case.||  [Notwithstanding  what  is 
here'  advanced,  courts  of  law  now  view  the  borrower  in  a  more  favourable  light,  and 
will  permit  him  to  recover  the  excess  of  interest  in  an  action  for  money  had  and 
received.  Browning  v.  Morris,  Cowp.  792.  But  to  entitle  him  to  bring  such  an 
action,  lie  must  show  that  he  has  done  all  that  equity  requires.  In  an  action,  there- 
fore ti>  recover  goods  which  the  plaintiff  had  pawned,  upon  a  usurious  contract,  the 
court  held  that  he  must  show  he  hud  tendered  all  the  money  really  advanced.  Fitzroy 
v.  Gwillim,  1  Term  It.  1515.]  || This  case  seems  not  law.  Roberts  v.  Goff,  4  Barn.  & 
A.  92  ;  Tre'goning  v.  Attcnborough,  7  Bing.  97. || 


USURY.  205 

(II)  How  far  Sureties  are  affected  by  usurious  Contracts. 

It  is  said  that  defendant  is  not  obliged  to  discover  any  usurious  con- 
tract, unless  the  plaintiff  offers  to  waive  the  penalty. 

3  Vio.  Abr.  tit.  Usury,  315,  cites  MS.  Tab.  tit.  Usury,  Jan.  24, 1424,  Brand  v.  Cum- 
ming;  [1  Atk.  450,  Earl  of  Suffolk  v.  Green;  2  Atk.  31)3,  Chauncy  v.  Tahourden.] 

|j  The  equitable  jurisdiction  in  bankruptcy  goes  much  further  than  courts 
either  of  law  or  equity.  At  law,  you  must  make  out  the  charge  of 
usury ;  and  in  equity,  you  cannot  come  for  relief  without  offering  to  pay 
what  is  legally  due ;  and  must  either  prove  the  usury  by  legal  evidence, 
or  have  the  confession  of  the  party:  but,  in  bankruptcy,  it  has  been  con- 
sidered sufficient  to  suggest  usury  in  a  petition  supported  by  affidavits, 
merely  upon  information  and  belief;  putting  the  party  charged  to  prove 
against  himself,  for  the  purpose,  not  of  giving  him  his  real  debt,  but  of 
cutting  him  off  from  all  relief. 

Per  Ld.  Eldon,  Ex  parte  Scrivener,  3  Ves.  &  Bea.  14 ;  and  see  2  Yes.  489  ;  9  Yes. 
Jun.  84. 

j3  When  usury  has  been  sufficiently  pleaded  in  an  action  at  law,  and,  on 
demurrer,  the  plea  adjudged  bad,  and  judgment  rendered  for  the  plain- 
tiff, the  defendant  cannot  set  up  this  matter  in  equity.     The  defendant 
at  law  should  have  taken  up  the  case  to  the  court  of  revisal. 
Lainme  v.  Saunders,  1  Monr.  267. 

In  general,  in  cases  of  usury,  equity  proceeds  to  compel  a  discovery 

upon  the  complainants  bringing  into  court  the  principal  sum  advanced 

with  legal  interest,  and  then  the  court  will  relieve  the  usurious  excess. 

Taylor  v.  Smith,  2  Hawks,  465  ;  Wilson  v.  Carver,  4  Hayw.  90 ;  Marks  v.  Morris, 
4  H.  &  M.  463;  S.  C.  2  Munf.  407 ;  6  Munf.  541 ;  1  Band.  172. 

Although,  upon  the  bill  of  the  borrower,  aid  will  be  extended  upon  the 

terms  of  repaying  the  sum  lent,  with  lawful  interest,  yet  the  lender  can 

have  no  relief  whatever,  and  his  bill  to  foreclose  a  usurious  mortgage  will 

be  dismissed. 

M'Brayer  v.  Roberts,  2  Dev.  Eq.  75.  See  State  Bank  v.  Knox.  1  Dev.  &  Bat.  Eq. 
50. 

But  under  a  usury  law,  which  does  not  avoid  the  securities,  and  only 
forbids  the  taking  more  than  six  per  centum  per  annum,  a  court  of  equity 
will  not  refuse  its  aid  to  obtain  the  principal. 

De  Wolf  v.  Johnson,  10  Wheat.  367. 

A  court  of  equity  will  relieve  against  usury,  when  the  remedy  is  not 
plain  and  unembarrassed  at  law. 

Coleman  v.  Childress,  6  Yerg.  398. 

After  it  has  been  actually  paid,  interest  may  be  recovered  back  in 

chancery. 

Pearce  v.  Hedrick,  3  Lit,  109 ;  M'Campbell  v.  Gill,  4  J.  J.  Marsh.  89  ;  Lawless  v. 
Blakey's  Adm'r,  4  Monr.  488 ;  Bodes'  Executors  v.  Bush,  5  Monr.  470. 

The  plea  of  the  statute  of  usury  ought  to  be  received  in  a  court  of  equity, 
at  any  time  before  the  decree  is  final,  if  there  be  strong  reasons,  from  the 
statement  in  the  bill,  for  believing  that  the  matter  of  such  plea  is  true. 

Ellsey  v.  Lane's  Executrix,  4  Munf.  66. £/ 

(II)  How  far  Sureties  are  affected  by  usurious  Contracts. 
B  WAS  bound  with  P  as  his  surety  to  J  S  in  a  bond  of  500/.,  and  that 
bond  was  upon  a  corrupt  and  usurious  contract  against  the  statute,  and  P 


296  USURY. 

(II)  How  far  Sureties  are  affected  by  usurious  Contracts. 

was  bound  unto  the  plaintiff  in  a  bond  as  a  counter-bond  to  save  the  plain- 
tiff harmless  from  the  said  bond  of  50(H. ;  B  is  sued  by  J  S  upon  the  said 
bond,  and  so  damnified  :  And  thereupon  B  sued  P  upon  the  counter-bond, 
who  pleaded  the  statute  of  usury,  pretending  that  all  assurances  depend- 
ing upon  such  usurious  contracts  are  void  by  the  statute.  But  by  the 
opinion  of  Wray,  C.  J.,  the  same  is  no  plea ;  for  the  statute  is,  that  all 
bonds,  collateral  assurances,  frc,  made  for  the  payment  of  money  lent 
upon  usury,  shall  be  utterly  void :  but  the  bond  here,  upon  which  the 
action  is  brought,  was  not  for  the  payment  of  the  money  lent,  but  for  the 
indemnity  of  the  surety. 

2  Le.  160,  pi.  200,  Basset  v.  Prowe.  ., 

So  likewise,  in  debt  on  bo7id  to  save  the  plaintiff  harmless  from  an 
obligation  wherein  he  and  the  defendant  were  bound  to  W,  &c,  and  from 
all  suit  concerning  the  same;  the  defendant  pleaded  the  statute  of  usury, 
and  that  it  was  made  upon  a  corrupt  agreement  between  him  and  W, 
which  the  plaintiff  might  have  pleaded  in  debt  against  him  by  W.  But 
the  court  held  the  plea  ill ;  for  though  the  first  obligation  were  void,  yet 
the  second  obligation  is  forfeited,  because  the  defendant  hath  not  saved 
him  harmless  from  suits  concerning  it,  nor  does  the  defendant  answer 
thereto,  but  to  the  obligation  only. 

Cro.  Eliz.  642,  pi.  43,  Button  v.  Downham ;  2  And.  121,  pi.  G5,  S.  C,  according!}'. 
But  it  is  there  said,  that  the  plaintiff  did  not  know  of  the  corrupt  bargain.  Noy,  73, 
S.  C,  by  the  name  of  Downham  v.  Butter,  and  judgment  for  the  plaintiff.  But  it  is 
added  that  Glanvil  said  it  would  lie  a  dangerous  precedent  to  avoid  the  statute.  For 
the  surety  may  be  a  friend  of  the  usurer's,  who  will  not  plead  the  statute  in  an  action 
of  debt  brought  against  him,  and  so  the  statute  would  be  to  little  purpose.  And  after 
the  judgment  given  for  the  plaintiff,  Glanvil  said  that  that  judgment  would  be  quickly 
carried  to  Cheapside. 

But  where,  in  debt  on  bond,  defendant  pleaded,  that  he  himself  borrowed 
100/.  of  W,  paying  for  the  forbearance  excessive  usury  ;  and  the  plaintiff 
was  his  surety  for  the  payment,  and  that  the  olbigation  upon  which  the 
action  is  brought  was  given  by  him  to  the  plaintiff  to  indemnify  him 
against  W ;  Manwood  held  this  a  good  bar ;  for  when  the  plaintiff  was 
impleaded  upon  the  principal  bond,  he  might  have  discharged  himself 
upon  this  matter,  and  therefore  the  laches  shall  turn  to  his  prejudice  ; 
and  therefore  the  issue  was  joined  upon  the  excessive  usury. 

3  Le.  03,  pi.  93,  Potkin's  case. 

So  likewise  in  debt  upon  an  obligation  to  save  the  plaintiff  harmless 
from  an  obligation,  wherein  the  plaintiff,  as  surety  for  the  defendant, 
was  bound  to  J  S  to  pay  100?.,  the  defendant  said  the  obligation  made  to 
J  S  zoas  upon  a  usurious  contract,  §-c,  and  concluded  sic  non  damnifi- 
catus.  Tanfield  said,  the  plea  is  good,  otherwise  the  statute  would  be 
defrauded ;  for  by  a  compact,  the  usurer  would  sue  the  surety,  who 
shall  pay  him,  and  have  his  remedy  on  his  counter-bond.  But  all  the 
court  held  it  no  plea ;  for  he  must  take  care  to  save  his  surety  harmless. 
And  adjudged  for  the  plaintiff. 

Cro.  Eliz.  588,  pi.  22,  Robinson  v.  May.  There  is  a  note  added,  that  the  reason 
conceived  was  that  the  surety  by  intendment  cannot  know  of  the  corrupt  contract  to 
plead  it  in  avoidance  of  the  bond,  and  therefore  the  principal  ought  to  take  care 

thereof.     Ibid. Goldsb.  174,  pi.  107,  S.  C.  held  accordingly  per  tot.  cur.     But  the 

reporter  adds — scd  qnxcre. 


USURY.  297 

(I)  What  Informations  will  lie  in  Cases  of  Usury,  and  where  they  are  good,  and 

where  not. 

An  information  was  moved  for  against  Cawket,  a  pawnbroker,  for  taking 
sixpence  a  pound  per  month  interest,  which  was  said  to  be  extravagant 
usury.  The  court,  however,  thought  there  was  nothing  so  enormous  in 
this  offence,  but  that  the  common  method  of  punishment  would  be  suffi- 
cient. But  it  was  argued,  that  the  statute  of  usury  allows  the  penalty 
for  usury  to  be  recovered  by  information,  or  action,  and  that  was  argued 
as  a  reason  why  the  court  should  grant  it.  But  the  court  said,  that  it 
was  to  be  understood  only  of  an  information  qui  tarn.  And  they  farther 
observed,  that  the  statute  chalking  out  a  particular  method  of  proceeding 
for  a  new  offence,  was  a  farther  reason  why  the  court  could  not  grant  an 
information ;  neither  can  the  party  be  so  much  as  indicted. 

1  Barn.  Rep.  in  K.  B.  209,  Anon. 

The  place  where  defendant  accepted  excessive  interest  ought  to  be  shown 
in  the  information,  but  not  the  place  where  the  contract  for  the  loan  or 
forbearing  was  made  ;  for  that  is  not  needful:  But  per  Clark,  J.,  and  per 
Grent,  J.,  and  Manwood,  C.  B.,  the  place  where  the  corrupt  bargain  was 
made  must  certainly  be  alleged. 

Le.  96,  pi.  125,  Sir  Wollaston  Dixy's  case.  An  information  upon  the  statute  of 
usury,  for  a  contract  with  persons  unknown,  recipiendu  ultra  107.  in  the  hundred,  was 
held  ill,  because  an  informer,  who  is  not  party,  although  the  contract  wTas  ultra  101., 
&c,  per  cent.,  shall  not  have  any  benefit  unless  there  ivas  a  receipt  of  the  usury  accord- 
ing to  the  contract.  And  for  that  the  recipiendo  is  naught,  because  there  is  no  place 
nor  time  put  of  the  receipt,  which  is  now  traversable  in  that  information.  Noy,  143, 
Nasie's  case.     ||See  4  Esp.  152;  1  Camp.  445.  ]| 

The  information  likewise  must  show  whose  money  it  is.  Per  Man- 
wood,  C.  B. 

Le.  97,  Sir  Wollaston  Dixy's  case. 

||  If  A  be  indebted  to  B,  and  B  to  C,  and  for  a  usurious  consideration 
C  agree  to  accept  A  for  his  debtor  instead  of  B,  this  may  be  laid  to  be 
a  usurious  loan  of  money  from  C  to  A,  the  new  debtor. 
Wade  q.  t.  v.  Wilson,  1  East,  195. 

And  if  forbearance  is  given  for  usurious  consideration  on  a  note  given 
as  a  collateral  security  for  the  debt  of  another  person,  in  an  action  on  the 
statute  against  the  creditor  so  forbearing,  the  usury  may  be  described  to 
be  for  forbearance  of  money  lent  by  the  defendant  to  the  collateral  surety. 

Manners  q.  t.  v.  Postan,  3  Bos.  &  Pul.  343. || 

If  an  information  be  exhibited  in  the  Exchequer  against  a  usurer,  and 
it  charge  that  he  took  more  than  10?.  in  the  100?.,  without  showing  how 
much,  such  information  is  utterly  insufficient ;  for  the  informer  ought  to 
set  forth  the  quantity  of  the  interest  received,  and  yet  the  same  is  not  to 
be  recovered. 

Arc/.  2  Le.  39,  pi.  52,  Martin  Van  Henbeck's  case. 

Upon  an  information  on  the  statute  of  usury,  and  subpoena  awarded  out 
of  C.  B.  against  the  defendant,  issue  joined,  and  found  for  the  informer, 
it  was  alleged  in  arrest  of  judgment,  that  the  court  of  C.  B.  is  not  to 
hold  plea  by  process  of  subpoena,  but  by  original,  and  is  not  aided  by  the 
statute  of  jeofails ;  for  it  is  not  a  misconceiving  of  process,  but  a  disor- 
derly award  of  it ;  and  it  was  insisted  likewise,  that  it  is  not  alleged,  in 
the  information,  by  whom,  or  to  whom,  nor  what  sum,  or  at  what  place, 

Vol.  X.— 38 


298  USURY. 

(I)  "What  Informations  will  lie  in  Cases  of  Usury,  &.c. 

nor  ivhen  the  money  was  lent,  nor  against  the  form  of  ivhat  statute  it  is  ; 
yet  judgment  was  given  for  the  plaintiff. 
And.  48,  Topeliff v.  Waller;  |IDyer,  346  b,  pi.  9.|| 

But  where  an  information  was  exhibited,  and  showed  the  usurious  con- 
tract, in  certain  whereby  it  appeared  that  more  than  10?.  was  reserved 
and  received  for  the  loan  of  100?.,  and  concluded  contra  formam  statuti; 
yet  because  it  did  not  expressly  state  that  it  was  per  corruptam  accommo 
dationem,  according  to  the  words  of  the  penal  statute,  the  information 
was  adjudged  insufficient. 

Arg.  11  Rep.  58  a,  Dr.  Foster's  case,  cites  it  as  adjudged.  And.  49,  pi.  123,  Emmet 
v.  Fuhvood,  seems  to  be  S.  C,  and  the  justices  of  both  benches  held,  that  those  words 
ought  to  be  expressly  alleged,  and  not  by  implication ;  and  cited  10  H.  7,  c.  10,  and 
for  default  of  those  words  the  judgment  was  reversed.  The  defendant  was  indicted 
for  usurious  lending  20s.  ed  intentione  to  receive  23s.  within  a  month,  and  that  the  de- 
fendant did  receive  3s.  for  the  loan  of  20s.  This,  per  curiam,  is  not  good  without 
saying,  quod  corrupte  agreatum  fuit,  and  for  that  reason  it  was  quashed,  being  re- 
moved out  of  the  inferior  court.  Keb.  029,  pi.  Ill,  The  King  v.  Gast  or  Garth. 
Croke,  J.,  took  a  diversity  between  an  information  and  a  verdict,  that  in  an  informa- 
tion the  agreement  ought  to  be  expressly  alleged  to  be  corrupt,  and  cited  11  Hep.  Dr. 
Foster's  case,  and  the  Book  of  Entries,  333,  but  that  it  is  otherwise  in  a  verdict,  which 
is  the  finding  of  the  lay  gents.     2  Roll.  R.  48,  Roberts  v.  Tremoil. 

An  information  upon  the  state  of  usury,  for  a  usurious  mortgage  made, 
charged  the  defendant,  that  cepit  ultra  10?.  in  100?.  for  the  forbearance 
of  one  year ;  and  this  was  out  of  the  issues,  rents,  and  profits,  which  he 
took  in  Middlesex,  of  lands  in  Glamorganshire,  in  Wales,  mortgaged  to 
the  defendant.  Manwood  said,  in  the  principal  case,  that  the  taking  of 
the  issues  and  profits  ought  to  have  been  laid  where  the  land  was.  And 
such  was  the  opinion  of  the  whole  court. 

3  Le.  238,  pi.  327,  Owen  Morgan's  case. 

In  debt  upon  the  statute  37  H.  8,  of  usury  the  (count)  was,  that  he  cor- 
ruptive lent  40?.  against  the  form  of  the  statute  ;  and  that  such  a  day  he 
lent  him  20?.,  &c,  against  the  form  of  the  statute  ;  but  (as  to  this)  did  not 
sag  corruptive^.  After  verdict  for  the  plaintiff,  it  was  objected,  that  he 
ought  not  to  have  judgment  for  either  of  the  sums,  it  being  clearly  ill  for 
the  20?.  for  want  of  the  word  (corruptive).  But  all  the  court  held,  that 
being  good  for  part,  he  shall  have  judgment  for  that  part ;  for  being  for 
several  sums,  it  is  in  nature  of  two  several  actions. 

Cro.  Ja.  104,  pi.  40,  Woody 's  case.  And  it  was  held,  in  this  court,  that  if  the  de- 
fendant had  demurred  upon  the  declaration,  it  had  been  good  for  the  one,  and  the 
plaintiff  should  have  had  judgment  for  that  part.     Cro.  Ja.  104,  in  S.  C. 

Information  in  the  Exchequer,  for  that  the  defendant  per  viam  corruptee, 
bargainice  received,  &c.  After  verdict  for  the  plaintiff,  it  was  moved  in 
arrest  of  judgment,  because  he  did  not  set  forth  what  the  bargain  was, 
but  generally,  per  viam  corruptee,  &c.  Sed  non  allocatur ;  for  this  is 
the  usual  course  of  the  Exchequer,  and  the  bargain  is  to  be  given  in  evi- 
dence. But  it  was  agreed,  that  in  pleading  to  avoid  a  bond  or  assurance, 
it  ought  to  be  particularly  set  forth  because  the  party  is  privy  to  his  own 
contract,  but  the  informer  is  not;  and  therefore  it  is  sufficient  for  him  to 
show  it  particularly  in  evidence. 

Cro.  Ja.  440,  pi.  13,  Bcdo  v.  Sanderson;  Hawk.  P.  C.  c.  82,  \  24,  says,  that  in 
pleading  a  usurious  contract  by  way  of  bar  to  an  action,  you  must  set  forth  the  whole 
matter  especially,  because  it  lay  within  your  own  privity ;  but  that  in  an  information 
onthe  statute  fur  making  such  a  contract,  it  is  sufficient  to  set  forth  the  corrupt  bar- 
gain generally,  because  matters  of  this  kind  are  supposed  to  bo  privily  transacted; 
and  such  information  may  be  brought  by  a  stranger.     ||  Vide  infra,  (K).|| 


USURY.  299 

(K)  Of  the  Pleadings  in  Cases  of  Usury. 

An  information  set  forth  that  the  defendant,  by  way  of  a  corrupt  contract 
cepit  et  ad  lucrum  suum  convertit  40s.  for  deferring  the  day  of  payment  of 
251.  from  the  29th  of  July  to  the  oOth  of  May,  (the  day  on  which  he  took 
the  40s.,)  contra  formam  statuti.  After  a  verdict  it  was  moved,  that  it  did 
not  appear  that  the  251.  was  money  lent;  but  it  appears  that  the  taking  the 
40s.  teas  after  lending,  and  there  is  no  corrupt  agreement  laid,  either 
before  or  at  the  time  of  lending.  But  adjudged  against  the  defendant ; 
for  though  it  be  not  well  laid,  so  as  to  give  judgment  against  the  defend- 
ant upon  the  statute  12  Car.  2,  c.  13,  to  pay  treble  the  money  lent ;  yet 
it  is  found  that  by  a  corrupt  agreement  he  took  so  much,  and  therefore 
gave  judgment  against  him  at  common  law,  viz.,  fine  and  imprisonment. 

Sid.  421,  pi.  9,  The  King  v.  Walker  ;  Yent.  38,  Anon.,  seems  to  be  S.  C,  says,  it 
vras  moved  that  the  time  of  forbearance  was  past,  and  the  party  might  give  what  he 
pleased  in  recompense  for  it,  there  being  no  precedent  agreement  to  enforce  him  to  it. 
Scd  non  allocatur;  for  the  court  said,  they  would  expound  the  statute  strictly  ;  and  if 
liberty  were  allowed  in  this  case,  the  brokers  might  oppress  the  people  exceedingly, 
by  detaining  the  pawn,  unless  the  party  would  give  them  what  they  please  to  demand 
for  the  time  after  failure  of  the  payment. 

It  has  been  held,  that  no  indictment  luill  lie  on  the  statute  of  usury  ; 
for  the  method  the  act  prescribes  must  be  followed ;  therefore  the  indict- 
ment must  be  quashed. 

11  Mod.  174,  pi.  17,  The  Queen  v.  Dye.  [Vide  Rex  v.  Upton,  2  Stra.  816  ;  1  Bar- 
nard. K.  B.  97,  S.  C. ;  Regina  v.  Smith,  2  Salk.  680.]  || Since  the  case  of  The  Queen 
v.  Dye,  no  indictment  seems  to  have  been  prosecuted.  Mr.  Plowden  thinks  the 
offence  still  indictable  at  common  law,  p.  220;  see  Comyn  on  Usury,  218.  || 

(K)  Of  the  Pleadings  in  Cases  of  Usury. 
In  pleading  a  usurious  contract  by  way  of  bar  to  an  action,  you  must 
set  forth  the  whole  matter  especially,  because  it  lay  within  your  own 
privity  ;{a)  but  in  an  information  on  the  statute  for  making  such  a  con- 
tract, it  is  sufficient  to  set  forth  the  corrupt  bargain  generally,  because 
matters  of  this  kind  are  supposed  to  be  privily  transacted,  and  such 
information  may  be  brought  by  a  stranger. 

Hawk.  P.  C.  c.  82,  g  24.  (a)  ||A  general  plea  of  usury  is  bad  on  special  demurrer. 
Hill  v.  Montagu,  2  Maule  &  S.  378  ;  but  the  objection  is  cured  by  the  plaintiff  plead 
iug  over.     Wright  v.  AVheeler,  1  Camp.  166. 

Where  the  statute  is  not  pleaded,  the  bond,  though  usurious,  is  good. 
3  Salk.  391,  pi.  7. 

But  it  has  been  held,  that  usury  cannot  be  pleaded  to  a  scire  facias  on 
a  judgment. 

2  Stra.  1043,  Bush  and  others,  assignees  of  Jones  v.  Gower.  [Ca.  temp.  Hardw. 
233,  S.  C.  In  such  case  the  court  relieve  by  staying  the  proceedings  on  the  judgment, 
and  directing  an  issue  to  try  whether  the  contract  was  usurious  or  not.  Cooke  v.  Jones, 
Cowp.  727.]  { 1  Johns.  Rep.  532,  n.,  Wardell  v.  Eden ;  3  Johns.  Rep.  139,  Starr  v. 
Schuyler ;  Ibid.  250,  Hewitt  v.  Pitch.  Vide  1  Bos.  &  Pul.  270,  Edmouson  v.  Popkin ; 
3  Johns.  Rep.  142,  King  v.  Shaw.} 

A  usurious  contract  was  pleaded  in  bar  of  debt  upon  a  bond,  but  it  was 
not  said  that  the  defendant  was  indebted  to  the  plaintiff  at  the  time  of  the 
bond  given,  or  that  there  was  an  agreement  to  lend  money  upon  the  usu- 
rious contract ;  and  for  that,  judgment  was  given  for  the  plaintiff. 

12  Mod.  385,  Crow  v.  Brown. 

Likewise,  after  a  verdict  pro  rege  on  an  indictment  for  usury,  it  was 
moved  in  arrest  of  judgment,  that  they  had  only  laid  a  corrupt  agreement, 


300  USURY. 

(K)  Of  the  Pleadings  in  Cases  of  Usury. 

•without  any  loan  or  taking  excessive  interest  in  pursuance  of  it.  And 
judgment  was  arrested. 

2  Stra.  816,  The  King  v.  Upton. 

Upon  usury  pleaded  to  an  action  against  the  defendant,  as  endorser  of  a 
note  for  200?.,  the  case  was,  that  one  Grace  took  the  note  upon  advancing 
197?.,  when  the  note  had  three  months  to  run,  and  at  the  three  months' 
end  took  another  note  for  200?.,  upon  advancing  8?.  for  other  three  months. 
It  was  insisted,  that  this  was  not  usury,  heing  a  purchase  out  and  out  of 
the  notes :  and  both  parties  becoming  bankrupts,  and  the  commissioners 
refusing  to  let  these  notes  be  proved,  a  petition  was  preferred  to  the  Lord 
Chancellor,  who  directed  an  issue  upon  them.  And  now  Lee,  C.  J., 
held,  that  this  was  usury  within  the  meaning  of  the  statute  12  Ann.  c. 
1G,  which  prohibits  the  taking  more  than  51.  per  cent.,  upon  any  contract 
directly  or  indirectly:  however,  he  left  it  to  the  jury  upon  the  question, 
Whether  this  was  to  be  deemed  a  purchase,  or  a  loan  ?  who  found  it  to 
be  the  latter,  and  the  defendant  had  a  verdict. 

2  Stra.  1243,  Massa  v.  Dauling. 

In  debt  on  bond  defendant  pleads  quod  corrupte  agreatum  fuit,  that  in- 
terest should  be  paid  for  it  above  the  rate  of  6?.  per  cent. :  plaintiff  demurs  : 
and  held  good  ;  for  that  the  plea  shows  not  what  interest,  nor  that  the  bond 
was  for  the  very  money,  but  only  by  intendment  (to  wit)  supra  agrcamento 
prcedicto  the  bond  was  given  ;  and  says  not  expressly  pro  cadem  pecunia. 
Judgment  pro  qucr'.  For  that  they  would  not  easily  avoid  a  bond,  and  the 
corrupt  agreement  ought  to  be  specially  and  particularly  set  forth,  and  the 
quantum  of  interest,  otherwise  the  plaintiff  can  never  tell  what  to  answer. 

2  Show.  329,  pi.  339,  Henton  v.  Roffee. 

In  an  error  of  a  judgment  in  the  Palace  court,  wherein  the  plaintiff  de- 
clared that  the  defendant  became  indebted  to  him  by  bond  in  the  sum  of 
107?.;  the  defendant,  without  claiming  over,  pleaded  that  he  was  indebted 
truly  to  the  plaintiff  in  921.  5s.  9c?.,  and  that  by  way  of  corrupt  agree- 
ment for  the  forbearance  of  that  sum  for  a  year  this  bond  was  given,  <§-c. 
The  plaintiff  replied,  that  the  bond  was  given  pro  vero  et  justo  debito,  and 
traversed  the  corrupt  agreement.  And  upon  demurrer  to  this  replication, 
it  was  insisted  that  it  was  ill,  because  the  plaintiff  did  not  show  how  much 
the  just  debt  was.  Sed  non  allocatur:  for  there  was  sufficient  to  induce 
the  traverse ;  and  if  it  had  been  alleged,  you  could  not  have  traversed 
the  inducement,  and  the  declaration  sufficiently  shows  the  debt. 

G  Mod.  303,  Villars  v.  Cary. 

In  debt  upon  a  bond,  defendant  pleaded  the  statute  12  Car.  2,  of  usury, 
and  said,  that  corrupite  agreatum  fuit,  that  he  should  pay  more  than  Ql.  per 
cent.  The  plaintiff  replied  quod  non  corrupte  agreatum  fuit,  and  held  a  good 
replication  ;  for  if  by  mistake  of  the  writer  the  money  was  made  payable 
without  any  corrupt  agreement,  it  is  not  usurious  within  the  statute. 

Freem.  204,  pi.  2SG,  Booth  v.  Cook. 

The  plaintiff  declares  upon  a  promissory  note  for  30?.  dated  4th  Feb. 
The  defendant  pleads  that  it  was  corruptly  agreed  between  him  and  the 
plaintiff,  that  he  should  pay  unto  the  plaintiff  45s.  for  the  loan  of  the  said 
sum  of  30?.  for  three  months,  and  then  sets  out  the  last  statute  against 
usury,  &c.  It  was  excepted  to  this  plea,  that  it  was  not  averred  that  the 
note  was  given  subsequent  to  the  late  act  against  usury.     To  which  it  was 


USURY.  301 

(K)  Of  the  Pleadings  in  Cases  of  Usury. 

answered  and  resolved  by  the  court,  that  by  the  date  of  the  note  it  ap- 
pears to  be  so. 

Fitzgibb.  130,  Baynham  v.  Matthews. 

In  an  indebitatus  assumpsit  for  101.  and  a  computasset  for  35?.  in  the 
same  declaration,  the  defendant  pleads  the  statute  of  usury  to  the  indebita- 
tus, and  avers  that  both  the  indebitatus  and  the  computasset  were  for  the 
same  cause  of  action.  It  was  resolved,  that  the  averment  was  naught ;  for 
the  ground  of  the  indebitatus  is  the  debt,  and  the  ground  of  the  computasset 
is  the  account ;  and  so  it  cannot  be  averred  that  there  is  the  same  cause 
of  both,  especially  as  it  is  here,  where  one  is  for  10/.  and  the  other  for 
35?.  But  Hale  said,  he  should  have  pleaded  the  statute  to  the  indebitatus, 
and  then  that  afterwards  they  came  to  an  account  for  the  same  wares,  &c. 

Freem.  307,  pi.  472,  Taylor  v.  Herbert. 

|3  Under  the  statute,  a  plea  claiming  a  credit  on  a  obligation,  for  the 
usurious  interest  only,  and  a  payment  actually  made,  was  holden  good. 
Fugate  v.  Ferguson,  1  Blaekf.  560. 

A  defence  of  usury  is  in  the  nature  of  a  penal  action,  and  much  strict- 
ness is  required  in  pleading  it :  the  plea  should  clearly  show  that  the 
defence  comes  within  the  statute. 

Hancock  v.  Hodgson,  3  Scam.  333. g( 

On  demurrer  in  debt  it  appeared  that  500?.  was  lent  upon  articles  dated 
the  8th  of  March,  to  be  paid  at  such  a  time ;  and  in  the  mean  time  to  pay 
15?.  half-yearly  from  November  before.  For  cause  of  demurrer  it  was  shown, 
that  it  appeared  by  the  declaration  that  the  contract  was  usurious ;  but  it 
was  answered,  that  the  defendant  ought  to  have  pleaded  that  corrupte 
agreatum  fuit,  $c,  and  so  given  the  plaintiff  an  opportunity  to  reply  to  it. 
But  upon  reading  the  articles  it  ivas,  Whereas  money  was  lent,  ftc,  which 
might  be  in  November,  or  before ;  and  therefore  judgment  was  given  for 
the  plaintiff. 

Sid.  285,  pi.  21,  Dande  v.  Currer.  ||  See  5  Barn.  &  A.  959,  and  1  Will.  Saund.  295 
a,  note  (f  ).|| 

Debt  was  brought  on  a  bill  to  pay  11.  the  first  of  May,  and  on  default 
of  payment  to  pay  3s.  4t?.  for  every  month  that  it  shall  be  in  arrear  after 
Mav  the  first.  Defendant  made  no  averment  that  the  agreement  was  to 
pay  the  3s.  4c?.  for  every  month  pro  lucro  interesse  et  diem  d.indo  solu- 
tionis, but  only  with  a  sic  the  said  sum  exceeded  8?.  per  cent,  whereas 
he  should  have  averred  that  the  same  did  exceed  8?.  upon  the  100?.,  those 
being  the  effectual  words  in  the  statute.     Judgment  pro  quer  . 

Sir  \V\  Jo.  409,  pi.  2,  Swailes  v.  Bateman. 

In  debt  on  a  bond  for  100?.  dated  the  12th  July,  &c,  conditioned  to  pay 
54?.  at  six  months'  end,  the  defendant  pleaded  the  statute  21  Jac.  of  usury. 
The  plaintiff  replied  that  he  lent  the  defendant  50?.  on  the  12th  July,  &c, 
for  a  year,  and  that  the  defendant  was  to  pay  for  it  4?.  for  the  forbearance 
of  one  year,  and  that  the  plaintiff  was  not  to  demand  it  till  the  end  of  the 
year;  but  that  by  mistake  of  the  scrivener  it  was  made  but  for  half  a  year, 
which  he  not  knowing,  accepted  it.  The  defendant  rejoined  that  the  lending 
was  only  for  half  a  year,  and  that  he  was  to  pay  4?.  for  it  for  that  time, 
absque  hoc,  that  on  the  said  12th  of  July  it  teas  agreed  that  the  loan  should 
be,  or  that  he  shoidd  forbear  it,  for  a  zvhole  year.  Upon  demurrer  it  was 
objected  that  the  plea  was  ill,  because  it  was  not  pleaded,  that  corrupts 
agreatum  fuit,  3$c.  And  so  the  court,  absente  Bramston,  held :  and  they 
all  held  the  allegation,  against  the  words  of  the  condition,  to  be  good ;  for 

2C 


302  USURY. 

(K)  Of  the  Pleadings  in  Cases  of  Usury. 

it  is  only  showing  the  true  agreement;  but  they  all  held  the  rejoinder 
ill,  because  in  the  traverse  the  defendant  had  made  the  day  (viz.,  12th 
July)  parcel  of  the  issue,  when  he  should  only  have  traversed  the  agree- 
ment.    But  no  judgment  was  given,  because  the  parties  agreed. 
Cro.  Car.  501,  pi.  1,  Nevison  v.  Whitley. 

The  defendant  borrowed  200?.  of  the  plaintiff;  and  it  was  agreed  between 
them  that  he  should  pay  the  200?.  at  such  a  day,  and  201.  for  the  interest  for' 
one  year,  and  that  certain  lands  should  be  conveyed  to  the  plaintiff,  upon 
condition  that  if  the  money  ivas  paid  at  the  day,  then  the  grant  shall  be 
void.     The  defendant  pleaded  the  statute  of  usury,  and  averred  that  the 
land  was  tvorth  V21.  a  year,  and  so  he  had  double  use.    The  plaintiff  replied, 
that  upon  the  borrowing  the  200?.  it  was  agreed  that  the  defendant  should  $ 
have  the  profits  of  the  land  until  breach  of  the  condition,  and  traversed  that 
there  was  an  agreement  that  he  should  have  the  profits  and  also  20?.  for  ! 
interest.     And  upon  a  demurrer  it  was  objected,  that  the  replication  was 
ill,  because  the  land  being  conveyed  to  the  plaintiff,  by  consequence,  the 
profits  are  so  too ;  and  therefore  he  cannot  aver  any  verbal  agreement  against 
the  deed,  that  he  had  not  the  profits.     But  the  plaintiff  had  judgment. 
Roll.  R.  41,  pi.  8,  Dodd  v.  Ellington. 

Tanfield,  Chief  Baron,  said,  that  upon  an  information  betwixt  Para- 
more  v.  Robinson,  in  B.  R.  where  several  contracts  upon  usury  being  al- 
leged, issue  was  joined,  whether  it  were  corrupte  agreatum  modo  etformd 
proitt,  it  was  resolved  by  all  the  justices  of  England  to  be  an  ill  issue ; 
for  he  ought  to  have  traversed  the  agreements,  because  they  were  several. 

Cro.  Ja.  544,  pi.  4,  Heath  v.  Dauntley. 

In  debt  on  bond  the  defendant  pleaded  the  statute  of  usury  made  6th 
of  Feb.  13  Eliz.  (whereas  the  parliament  began  2d  Feb.  13  Eliz.)  The 
plaintiff  replied,  that  it  was  not  made  for  usury  contra  formam  statuti 
modo  et  forma  prcedict.  Though  both  parties  agree  that  there  is  such  a 
statute,  yet  the  court  knowing  that  there  is  not,  and  that  therefore  it 
cannot  be  contra  formam  statuti;  the  court  held  that  no  judgment  could 
be  given  for  the  plaintiff;  and  it  being  in  the  bar  of  the  defendant,  the 
court  held  it  clearly  ill,  and  that  there  should  be  a  repleader. 

Cro.  Eliz.  245,  pi.  4,  Love  v.  Wotton. 

In  case,  §c,  upon  a  special  promise,  the  plaintiff  set  forth  that  he  was 
jyossessed  of  several  pieces  of  hammered  money,  S?c,  and  that  the  defend- 
ant in  consideration  the  plaintiff  ivould  pay  that  money,  being  in  number 
and  tale  300?.,  he  promised  to  repay  300?.  of  new  money,  together  with 
4?.  10s.  more  for  the  interest  of  every  100?.  for  eight  mo?iths,  <J-c,  and 
then  declares  upon  an  indebitatus  assumpsit  for  313?.  10s.  After  verdict, 
it  was  moved  that  the  contract  was  usurious,  it  being  to  pay  41.  10s.  for 
the  interest  of  100?.  for  eight  months :  but  per  tot.  cur.  judgment  was 
given  for  the  plaintiff.  It  was  agreed,  that  if  it  had  appeared  by  the 
plaintiff's  own  declaration  that  the  contract  was  usurious,  and  could  not 
be  otherwise,  judgment  ought  to  be  given  against  him:  but  that  it  does 
not  appear  here  that  the  contract  must  necessarily  be  usurious ;  and  the 
jury  having  found  the  assumpsit,  the  court  could  not  intend  usury,  but 
the  contrary.  And  Powell,  J.,  observed,  that  the  consideration  of  the 
promise  here  is,  viz.,  that  the  said  plaintiff  would  pay  to  the  said  defend- 
ant the  said  300?. ;  so  that  here  is  no  loan,  without  which  there  can  be 
no  usury ;  and  they  would  not  intend  a  loan,  unless  the  jury  had  found  one. 

Lutw.  271,  273,  Yeor>an  v.  Barstow. 


USURY.  303 

(K)  Of  the  Pleadings  in  Cases  of  Usury. 

The  defendant,  in  consideration  of  121.,  paid  him  by  the  plaintiff,  gave 
bond  to  pay  the  plaintiff  14/.  if  he  lived  six  months  after  the  date  of  the 
bond.  There  was  a  plea  and  demurrer,  and  it  was  objected,  that  it  ap- 
pears by  the  very  condition  of  this  bond,  that  the  contract  was  usurious, 
it  being  to  pay  147.  for  12/.  in  six  months  after  the  date  of  the  bond  ; 
though  this  might  have  made  the  bond  void,  in  case  the  statute  had  been 
pleaded,  yet,  that  not  being  done,  this  objection  comes  too  late. 

3  Salk.  301,  pi.  7,  cites  Lutw.  Grange's  case. 

[If  there  is  an  agreement  to  pay  legal  interest,  and  a  premium  is  paid 

down   over  and  above  the  interest,  the  agreement  is  usurious  and  void. 

But  the  penalty  under  the  statute  of  Anne  is  not  incurred,  if  the  premium 

itself  does  not  exceed  l1}  legal  interest,  nor  till  more  than  legal  interest 

is  actually  received ;  so  that  an  action  may  be  brought  for  the  penalty, 

though  more  than  a  year  has  elapsed  since  the  payment  of  the  premium, 

if  it  is  not  a  year  since  that  which  exceeded  legal  interest  has  been  paid. 

Fisher  v.  Beasley,  Doug.  235.  {*}  But  the  usury  is  complete  as  soon  as  the  lender 
receives  any  part  of  the  growing  interest.     1  East,  195,  Wade  v.  Wilson.} 

But,  where  one  lends  1007.  and  takes  67.  5s.  for  the  interest  thereof 

for  three  months,  by  way  of  advance  at  the  time  of  lending,  the  penalty 

is  that  instant  incurred,  and  the  action  for  it  must  be  brought  within  a 

year  from  that  time. 

Lloyd  v.  Williams,  3  Wils.  250  ;  2  Bl.  R.  702,  S.  C.  ;  ||  Scurry  v.  Freeman,  2  Bos. 
&  Pul.  381.  And  the  sum  actually  paid  after  the  interest  is  deducted  may  be  described 
as  the  sum  forborne,  Ibid. :  and  see  Lee,  q.  t.  v.  Cass,  1  Taunt.  511 ;  Hutchinson  v. 
Piper,  4  Taunt.  810.  || 

||  Where  a  premium  is  actually  paid  at  the  time  of  the  contract,  and 
57.  per  cent,  is  agreed  to  be  paid  for  interest,  the  offence  of  usury  is  com- 
plete on  receipt  of  any  part  of  that  interest. 
Wade  v.  Wilson,  1  East,  195.  || 

{But  if  the  contract  is  laid  to  be  with  A  and  B  (who  were  partners) 
jointly,  and  the  proof  is  of  a  note  given  by  A,  alone,  the  variance  is  fatal. 

1  DaJl.  210,  Musgrove  v.  Gibbs.} 

[If  there  be  a  corrupt  agreement  for  the  forbearance  of  money  till  one 
or  the  other  of  two  days  at  the  option  of  the  borrower,  it  must  be  so 
pleaded  according  to  the  fact :  for  if  it  be  pleaded  as  an  absolute  forbear- 
ance till  one  of  those  days,  the  evidence  will  not  support  the  plea. 

Tate  v.  WTellings,  3  Term  R.  531. 

In  an  action  on  a  bill  of  exchange,  if  there  is  a  plea  of  usurious  agree- 
ment, and  that  the  bill  was  given  in  consequence  thereof,  the  plaintiff 
may  traverse  the  usurious  agreement,  and  conclude  with  a  verification. 

Smith  v.  Dovez',  Doug.  428.] 

1 A  lent  B  5007.,  and  at  the  time  of  the  loan  it  was  agreed  that  the  lat- 
ter should  give  something  more  than  legal  interest  as  a  compensation,  but 
no  particular  sum  was  specified.  After  the  execution  of  the  securities, 
B  gave  A  50/.  and  paid  interest  at  the  rate  of  five  per  cent,  on  the  500/. 
for  five  years,  at  the  end  of  which  time  an  action  was  brought  against  A, 
for  usury.  And  it  was  held  that  the  action  was  not  barred  by  lapse  of 
time ;  for  that  the  loan  was  substantially  of  no  more  than  450/.  and  con- 
sequently the  interest  at  the  rate  of  five  per  cent,  on  the  500/.  received 
within  the  last  year  was  usurious. 

2  Bos.  &  Pul.  381,  Scurry  v.  Freeman.} 


304  USURY. 

(L)  Of  the  Trial  and  Evidence  in  Cases  of  Usury. 

PA  defendant  may  plead  to  a  scire  facias,  brought  to  revive  a  decree, 
which  was  obtained  against  him  by  default,  that  the  original  contract  was 
usurious. 

Lane  v.  Ellzey,  4  II.  &  M.  504.tf 

(L)  Of  the  Trial  and  Evidence  in  Cases  of  Usury. 

By  13  Eliz.  c.  8,  §  3,  justices  of  oyer  and  terminer,  of  assize  and  of  peace, 
in  their  circuits  and  sessions,  and,  mayors,  sheriffs,  and  bailiffs  of  cities,  have 
power  to  hear  and  determine  all  offences  committed  against  37  H.  8,  c.  9. 

It  has  been  held  that  the  trial  should  be  where  the  contract  was,  and 

not  where  the  bond  was  made. 

Le.  148,  pi.  206,  Kinnersley  v.  Smart ;  Cro.  Eliz.  195,  pi.  10,  S.  C.  accordingly ; 
for  the  bond  is  confessed,  and  the  point  is,  whether  it  be  made  by  usury,  which  was 
alleged  to  be  where  the  trial  was. 

[The  defendant  lent  2000?.  to  the  plaintiff  on  mortgage,  with  a  usurious 
clause  in  the  deed,  that  he  should  have  40?.  as  a  pretended  salary  for  re- 
ceiving the  rents.  The  deed  was  made  and  executed  in  London :  the  lands 
lay  in  Middlesex :  the  account  was  settled  in  London,  and  the  receipt  for 
the  balance  signed  in  London,  but  the  draft  given  for  it  was  upon  a  bank- 
er in  Middlesex.  It  was  adjudged  that  the  venue  was  properly  laid  in 
London  ;  for  not  only  the  usurious  taking,  but  also  the  contract,  by  which 
the  defendant  was  appointed  receiver,  were  both  in  London. 

Scott  v.  Brest,  2  Term  R.  238,]  ||But  it  is  now  settled,  that  the  venue  must  be  laid 
where  the  usurious  interest  is  received,  and  not  where  the  usurious  security  is  given. 
Scurry  v.  Freeman,  2  Bos.  &  Pul.  381 ;  Pearson  v.  M'Gowran,  3  Barn.  &  Ores.  TOO.  Ij 

In  an  action  tarn  quam,  <j-c,  in  the  Exchequer,  for  taking  more  than  Gl. 
per  cent.,  contra  formam  statuti.  After  verdict  for  the  plaintiff  it  was 
moved  in  arrest  of  judgment,  that  it  lies  not  in  this  court  for  usury  com- 
mitted in  London,  though  it  would  lie  2ipon  the  statute  of  21  Jac.  ;  and  in 
truth  the  interest  taken  here  was  more  than  10?.  per  cent.  And  by  the 
general  conclusion  of  contra  formam  statuti,  it  shall  be  intended  against 
the  form  of  that  statute  which  allows  the  largest  interest,  and  there  are 
four  statutes  against  usury,  one  of  Hen.  8,  which  allows  10?.  per  cent.  ; 
another  of  Queen  Eliz.,  which  allows  8?.  per  cent. ;  a  third  of  King  James ; 
and  a  fourth  of  Charles  2,  which  allows  but  61.  per  cent.  And  by  the 
statute  of  Jac.  1,  c.  4,  there  shall  be  no  suit  upon  a  penal  statute,  but  as 
therein  directed,  which  does  not  extend  to  the  court  of  Exchequer,  unless 
the  offence  is  done  in  Middlesex.  But  per  Hale,  C.  B. — The  offence  laid 
in  the  information  being  for  taking  more  than  61.  per  cent,  shall  be  taken 
to  be  grounded  upon  that  statute  that  prohibits  taking  more  than  61.  per 
cent.,  and  that  the  law  gives  the  suit  in  no  court  in  particular,  and  therefore 
it  may  well  be  prosecuted  here;  though  if  a  particular  court  had  been 
named,  as  in  21  Jac,  it  would  be  otherwise.     The  court  took  time  to  advise. 

Ilardr.  420,  Anon. 

An  indictment  was  brought  at  the  sessions  before  the  justices  of  the 
peace  at  Hick's  Hall  for  usury  contra  formam  statuti ;  and  judgment  was 
against  the  defendant,  upon  which  a  writ  of  error  was  brought  in  B.  R., 
and  the  judgment  reversed;  for  the  justices  of  the  peace  have  no  juris- 
diction in  this  case. 

2  Salk.  G80,  pi.  1,  The  Queen  v.  Smith ;  2  Ld.  Raym.  1144,  S.  C. ;  3  Salk.  188, 
The  King  v.  Bakostraw.  And  in  the  case  of  the  King  v.  Pexlcy,  it  was  admitted  by 
the  counsel  that  moved,  that  upon  the  statute  of  Queen  Elizabeth,  which  prohibits  the 


USURY.  305 

(L)  Of  the  Trial  and  Evidence  in  Cases  of  Usury. 

taking  above  101.  per  cent.,  the  justices  of  peace  at  sessions  have  jurisdiction  ;  hut  in- 
sisted that  they  have  not  upon  any  of  the  later  statutes.  2  Barnard.  R.  in  B.  K.  14:;, 
The  King  v.  Pexley. 

If  an  information  be  brought  against  two,  upon  the  statute  of  usury, 
and  one  only  be  found  guilty,  no  judgment  can  be  given  in  this  case. 
Arg.  to  which  the  court  agreed. 

Lane,  19,  Page's  case. 

In  an  information  upon  the  statute  of  usury,  the  defendant  pleads  nil 
debet.  The  jury  find  a  usurious  receipt,  but  do  not  find  any  loan.  A 
new  venire  facias  should  be  awarded,  and  not  a  new  nisi  jwius. 

Jenk.  283,  pi.  13  ;  8  Rep.  65,  Loveday's  case. 

Usury  shall  not  be  intended,  unless  the  jury  find  it  expressly. 

Arg.  Bridg.  212,  Webb  and  Jucks  v.  Worfield,  cites  10  Rep.  5G.  {Vide  1  Wash. 
368,  M'Guire  v.  Warder.} 

{The  court  has  the  exclusive  power  of  deciding  whether  a  written  con- 
tract be  usurious. 

3  Cran.  180,  Levy  v.  Gadsby.} 

With  respect  to  the  law  concerning  evidence  in  case  of  usury,  it  has 
been  ruled,  that  he  who  hath  agreed  to  pay  money  upon  a  usurious  con- 
tract, shall  not  be  admitted  to  give  evidence  upon  an  information  against 
the  usurer,  unless  he  have  paid  off  the  whole  debt ;  for  by  such  means  a 
man  might  avoid  his  own  act  and  deed. 


o 


Hawk.  P.  C.  c.  82,  \  27.  |3The  payment  and  receipt  of  usurious  interest  is  prima 
facie  evidence  of  a  usurious  contract.     Dennis  v.  Crawford,  3  Harr.  (N.  J.)  R.  325. cj 

j3  Though,  in  general,  paiol  evidence  cannot  be  given  to  vary  the  terms 
of  a  written  contract,  yet  it  is  the  effect  of  the  statutes  against  usury  to 
admit  such  evidence  to  vary  or  alter  the  terms  of  a  written  instrument, 
and  to  expunge  from  it  all  that  is  usurious. 

Fenwick  v.  Ratliff 's  rep's.,  6  Monr.  155 ;  Grimes  v.  Shreeve,  6  Monr.  553  ;  Lindsey 
v.  Sharp,  7  Monr.  753. $ 

Also,  an  information  for  a  usurious  contract  on  a  loan  of  money,  cannot 
be  supported  by  evidence  of  such  a  contract  on  a  bargain  concerning 
wares  sold. 

Hawk.  P.  C.  c.  82,  \  28. 

[But  where  in  an  action  on  the  statute  for  the  penalty,  the  declaration 
stated  a  specific  sum  of  money  to  have  been  lent  (in  which  the  usury  con- 
sisted,) but  the  evidence  was,  that  the  loan  was  part  in  money,  and  the 
rest  in  goods  of  a  known  value,  which  the  borrower  agreed  to  take  as 
cash  ;  it  was  holden  to  be  good  evidence  to  support  the  declaration. 

Bar  be  v.  Parker,  1  H.  Bl.  283.  J 

In  a  qui  tarn  on  the  statute  of  usury,  the  Chief  Justice  refused  to  let 
the  party  to  the  contract  be  a  witness  to  prove  the  repayment  of  the 
money,  because  till  that  was  proved  he  was  no  witness  at  all. 

1  Stra.  033,  Shank,  qui  tarn,  v.  Payne. 

[It  has  been  ruled,  however,  in  later  cases,  and  seems  now  to  be 
settled,  that  in  such  an  action,  the  borrower  of  the  money  is  a  competent 
witness  to  prove  the  whole  case,  as  well  the  repayment  of  the  money  aa 
the  other  facts. 

Smith  v.  Prager,  7  Term  R.  60;  Abrahams  v.  Bunn,  4  Burr.  2251.] 

1  And  if  the  usury  be  specially  pleaded,  and  the  court  reject  the  evi 
Vol.  X.— 39  2  c  2 


306  VERDICT. 

Verdict. 

dence  offered  on  such  special  plea,  it  may  notwithstanding  be  admitted 
on  the  general  issue. 
3  Cran.  180,  Levy  v.  Gadsby. } 

||  In  an  action  against  the  defendant  for  penalties  for  discounting  a  bill 
for  usurious  interest,  the  evidence  to  fix  the  defendant  was,  that  a  person 
named  Brown  demanded  payment,  and  commenced  an  action  against  the 
acceptor  in  the  defendant's  name;  and  on  receiving  the  amount  of  the 
bill  and  costs  of  the  proceedings,  gave  a  receipt  as  agent  for  the  defend- 
ant ;  it  was  held  that  this  alone  was  good  primd  facie  evidence  of  the 
defendant  having  received  the  usurious  interest. 
Owen  q.  t.  v.  Barlow,  1  New  R.  101.  || 

On  a  motion  for  leave  to  plead  double,  the  court  declared,  that  on  non 
assumpsit  the  defendant  might  give  in  evidence  a  usurious  contract,  be- 
cause that  makes  it  a  void  promise ;  but  in  the  case  of  a  specialty,  it 
must  be  pleaded.  And  on  the  trial  the  defendant  was  admitted  to  that 
evidence  upon  the  general  issue,  and  the  plaintiff  was  nonsuit. 

1  Stra.  498,  Lord  Barnard  v.  Saul;  {3  Cran.  180,  Levy  v.  Gadsby.}  ||In  an  action 
by  the  endorsee  against  the  endorser  of  a  bill,  where  the  defendant  proves  usury  in 
the  connection  or  negotiation  of  the  bill,  the  plaintiff  must  prove  himself  a  bond  fide 
holder,  although  he  have  received  no  notice  to  prove  consideration.  Wyatt  v.  Camp- 
bell, Moo.  &  Malk.  80.  || 

p  The  limitation  in  favour  of  the  usurer  runs  from  the  time  the  usurious 
interest  is  paid. 

Kodes's  executors  v.  Bush,  5  Monr.  469. 

But  in  Kentucky,  it  has  been  holden  that  taking  in  a  note  given  upon  a 
usurious  contract,  and  executing  another  in  its  stead  to  a  creditor  of  the 
usurer,  gives  the  obligor  an  instantaneous  right  of  action  to  recover  the 
usury,  and  the  statute  of  limitation  commences  to  run  from  that  time. 

Breckenridge  v.  Churchill,  3  J.  J.  Marsh.  16. £/ 


VERDICT. 


The  word  Verdict  is  derived  from  the  two  Latin  words  veritatis  dictum. 

P  Verdict  is  the  unanimous  decision  made  by  a  jury,  and  reported  to 
the  court,  on  the  matters  lawfully  submitted  to  them  in  the  course  of  the 
trial  of  a  cause. 
Bouv.  L.  P.  h.  v. 

The  verdict  recorded  in  court  is  the  only  proper  verdict ;  the  written 
paper  returned  by  the  jury  as  their  verdict  is  not  evidence  nor  part  of 
the  record. 

Dornick  v.  Reichenback,  10  S.  &  R.  8J.0 

Costs  and  damages,  which  might  very  well  have  been  treated  of  under 
this  title,  have  been  treated  of  under  the  titles  "Costs"  and  "Da- 
masks." 


VERDICT.  307 

(A)  Of  a  Verdict  de  bene  Esse. 

The  remaining  matter,  -which  appertains  to  this  title,  shall  be  ranged 
in  the  following  order. 

(A)  Of  a  Verdict  de  bene  Esse. 

(B)  Of  a  Privy  Verdict. 

(C)  Of  a  General  Verdict. 

(D)  Of  a  Special  Verdict. 

(E)  Of  the  Province  of  the  Court  where  a  Special  Verdict  is  found. 

(F)  Of  a  Verdict  in  which  the  Jurors  did  not  all  agree. 

(G)  Of  the  Power  of  the  Jury  to  depart  from  a  General  Verdict,  after  it  is  given  in 

open  Court. 

(II)  In  what  Cases  a  Verdict  is  bad,  on  account  of  Misbehaviour  in  one  or  more  of 
the  Jurors. 

(I)  In  what  Cases  a  Verdict  is  bad,  on  account  of  Misbehaviour  in  one  of  the 
Parties. 

(K)  Of  a  Verdict  upon  an  informal  or  immaterial  Issue. 

(L)  Of  a  Verdict  upon  an  Issue,  part  of  which  is  insensible  or  insufficient. 

(M)  Of  a  Verdict  which  does  not  find  all  that  is  in  Issue. 

(N)  Of  a  Verdict  which  finds  a  Thing  that  is  not  in  Issue, 

(0)  Of  a  Verdict  which  varies  from  the  Issue. 

1.  7/i  an  Action  of  Assumpsit. 

2.  7/i  an  Action  upon  tJie  Case. 

3.  In  an  Action  of  Covenant. 

4.  In  an  Action  of  Debt. 

5.  In  an  Action  of  Ejectment. 

6.  In  an  Action  of  Replevin. 

7.  In  an  Action  of  Trespass. 

8.  In  divers  other  Actions. 

9.  In  a  criminal  Prosecution. 

(P)  Of  a  Verdict  where  the  words  Modo  et  Forma  are  used  in  the  Traverse  upon 
which  Issue  is  joined. 

(Q)  Of  a  Verdict  which  does  not  find  the  Matter  in  Issue  with  Certainty. 

(Pi)  Of  a  Verdict  which  does  not  find  the  Matter  in  Issue  expressly. 

(S)  Of  a  Verdict  which  finds  a  Matter  in  a  Foreign  County. 

(T)  Of  a  Verdict  which  is  contrary  to  a  Matter  of  Record. 

(U)  Of  a  Verdict  which  is  contrary  to  a  Matter  of  Estoppel. 

(W)  Of  a  Verdict  which  is  contrary  to  something  that  is  confessed,  or  not  denied 
in  the  Pleadings. 

(X)  What  omission  in  the  Pleadings  is  cured  by  a  Verdict. 

(Y)  What  Mistake,  or  Omission,  in  the  copy  of  the  Issue  delivered  is  cured  by  a 
Arerdict. 

(Z)  Of  divers  Things,  which  did  not  fall  properly  under  any  of  the  foregoing  Heads. 


(A)  Of  a  Verdict  de  bene  Esse. 

If  the  judge,  before  whom  the  cause  is  tried,  have  a  doubt  as  to  the 
propriety  of  finding  a  verdict,  he  may  direct  the  jury  to  find  one  de  bene 
esse ;  which  verdict,  if  the  court  shall  be  of  opinion  that  a  verdict  ought 
to  have  lecn  found,  shall  stand. 

Brown,  Meth.  13. 


308  VERDICT. 

(C)  Of  a  General  Verdict. 

If  an  action  of  debt  be  brought  against  a  husband  and  wife,  and  at  the 
trial  of  the  cause  the  wife  make  default,  and  a  protection  be  cast  for  her, 
the  judge  may  direct  the  jury  to  find  a  verdict  de  bene  esse;  which,  if 
the  protection  be  disallowed  by  the  court,  shall  stand. 
Bro.  Protect,  pi.  3. 

(B)  Of  a  Privy  Verdict, 

A  privy  verdict  is  so  called,  because  what  is  thereby  found  ought  to 
be  kept  secret  until  a  verdict  is  given  in  open  court. 

1  Inst,  228.  {Vide  1  Johns.  Ca.  308 ;  3  Johns.  Rep.  255.)  j3Tho  verdict  must  be 
openly  pronounced  by  the  jury.     Johnson  v.  Depuy,  1  Penning.  lG5.gf 

A  jury  may  find  differently  by  a  verdict  given  in  open  court,  from 
what  they  found  by  a  privy  verdict. 

1  Inst,  227  ;  Moor,  33. 

The  jury,  who  by  a  privy  verdict  had  found  for  the  defendant,  did  by 
a  verdict  given  in  open  court  find  for  the  plaintiff.  Both  verdicts  being 
returned  upon  the  postca,  it  was  holden  that  the  latter  should  stand: 
and  by  the  court, — The  verdict  given  in  open  court  is  the  binding  verdict, 
the  other  being  only  allowed  for  the  ease  of  the  jury. 

Plowd.  21 1 ;  Saunders  v.  Freeman,  Dyer,  217. 

It  is  in  one  book  laid  down,  that  a  privy  verdict  cannot  be  given  in  a 
case  of  life  or  member. 
1  Inst.  227. 

In  two  other  books  it  is  laid  down,  that  a  privy  verdict  cannot  be 
given  in  a  case  of  felony ;  because  the  jury  are  directed,  and  ought,  in 
such  case,  to  look  upon  the  prisoner  when  they  give  their  verdict. 

Raym.  193,  Ilex  v.  Ladsingham ;  1  Ventr.  97. 

But  it  is  in  these  books  said  that  wherever  the  persona!  appearance 
of  the  defendant  is  not  necessary,  the  jury  may  give  a  privy  verdict,  and 
that  it  is  usual  so  to  do. 

Raym.  193,  Rex  v.  Ladsingham ;  1  Ventr.  97. 

In  an  information  for  a  misdemeanor,  the  jury  had  given  a  privy 
verdict.  The  verdict  afterwards  given  in  open  court  was  upon  this 
account  objected  to ;  but  it  was  holden  to  be  good. 

Raym.  193,  Rex  v.  Ladsingham  ;  1  Ventr.  97. 

[If  the  judge  hath  adjourned  the  court  to  his  own  lodgings,  and  there 
receives  the  verdict,  it  is  a  public  and  not  a  privy  verdict. 
3  Bl.  Com.  377.] 

(C)  Of  a  General  Verdict. 

A  general  verdict  is  so  called,  because  the  whole  matter  in  issue  is 
thereby  found  generally. 

i3  The  verdict  is  general,  when  it  finds  the  facts  and  the  law,  as,  for 
instance,  that  a  certain  sale  took  place;  it  is  special,  when  it  finds  cer- 
tain facts,  leaving  it  to  the  court  to  decide  whether  those  facts  constitute 
a  sale. 

Chidoteaivs  Heirs  v.  Dominguoz,  7  Mart.  R.  521. tf 

If  the  venue  in  an  action  of  assault  and  battery  be  laid  in  the  parish  of 
A,  tiie  jury  shall  not  be  received  to  say,  that  the  defendant  is  not  guilty  in 


VERDICT.  309 

(D)  Of  a  Special  Verdict. 

the  parish  of  A ;  for  the  jury  must  either  find  the  whole  matter  in  issue 
specially,  or  they  must  find  generally  that  the  defendant  is  or  is  not  guilty. 

2  Roll.  Abr.  694,  U,  pi.  1. 

The  jury  may  in  any  case,  if  they  will  take  upon  themselves  the 
knowledge  of  the  law,  find  a  general  verdict ;  but  it  is  in  some  cases  dan- 
gerous for  them  so  to  do  ;  for  if  they  mistake  the  law,  they  run  themselves 
into  the  danger  of  an  attaint.(a)  It  is  therefore  the  safer  way,  for  the 
jury  to  find  a  special  verdict  in  a  case  which  appears  to  them  doubtful. 

1  Inst.  228;  4  Rep.  54.  \\(a)  The  practice  of  setting  aside  verdicts  upon  motion, 
and  of  granting  new  trials,  superseded  the  use  of  attaints ;  there  are  very  few  in- 
stances of  an  attaint  in  the  books  later  than  the  sixteenth  century.  Cro.  Eliz.  309  ; 
3  Bl.  Com.  405  ;  and  the  proceeding  is  now  abolished  by  6  G.  4,  c.  50,  I  00.  || 

3  When  there  is  a  general  verdict,  and  some  of  the  counts  are  bad,  and 
the  court  below  enters  judgment  on  the  counts  supposed  to  be  good,  the 
judgment  will  be  reversed. 

Ilarker  v.  Orr,  10  Watts,  245. 

The  rule,  that  a  judgment  cannot  be  entered  upon  a  general  verdict  in 
favour  of  the  plaintiff,  when  his  declaration  contains  two  or  more  counts, 
one  of  which  is  bad,  does  not  apply  to  the  case  of  a  general  verdict  in 
favour  of  the  defendant,  when  some  of  his  pleas  are  bad. 

Wilson  v.  Gray,  8  Watts,  37. 

A  jury  are  not  bound  to  find  any  other  than  a  general  verdict,  although 
the  judge  directs  them  to  find  specially  as  to  a  particular  fact,  on  which 
a  legal  question  may  be  raised. 

Devizes,  Mayor  &c.  v.  Clark,  3  Ad.  &  Ell.  506.D 

(D)  Of  a  Special  Verdict. 

A  special  verdict  is  so  called,  because  some  matter  of  fact  is  thereby 
found  specially. 

The  design  of  a  special  verdict  is  to  submit  some  questions  of  law, 
which  arise  upon  the  matter  of  fact  found  specially,  to  the  consideration 
of  the  court. 

3  A  special  verdict  must  contain  fact,  and  not  evidence  of  facts. 

Brown  v,  Ralston,  4  Rand.  504. 

Special  verdicts  leave  no  room  for  presumption. 
Boiling  v.  The  Mayor,  &c,  3  Rand.  536.£/ 

It  seems  to  have  been  always  holden,  that  if  the  general  issue  be 
pleaded,  the  jury  may  find  a  special  verdict. 
Bro.  Verd.  56,  pi.  45,  pi.  56,  pi.  85. 

It  is  laid  down  in  two  books,  that  if  an  issue  be  joined  upon  a  special 
plea,  the  jury  cannot  find  a  special  verdict. 
Bro.  Verd.  pi.  45  ;  Dyer,  117. 

But  it  is  laid  down  in  another  book,  that  although  there  be  cases  to 
the  contrary,  it  is  settled,  that  the  jury  may  find  a  special  verdict  as  to 
the  matter  in  issue  upon  a  special  plea ;  for  that  a  question  of  law  may 
as  well  arise  in  such  case,  as  where  the  general  issue  is  pleaded. 

1  Inst.  226,  227. 

And  in  another  book  it  is  said  to  have  been  holden,  that  in  all  pleas 
of  the  crown,  and  in  every  civil  action,  whether  it  be  real,  personal,  or 


310  VERDICT. 

(D)  Of  a  Special  Verdict. 

mixed,  in  which  an  issue  is  joined  betwixt  the  king  and  a  party,  or  be- 
twixt party  and  party,  the  jury  may  find  a  special  verdict. 
9  Rep.  12,  Bowman's  case. 

It  is  said,  that  the  court  cannot  refuse  to  receive  a  special  verdict,  pro- 
vided the  matter  specially  found  be  pertinent  to  the  issue :  for  that  the 
jury  have  a  right  to  find  such  verdict  in  every  case  which  appears  to 
them  doubtful. 

1  Inst.  228 ;  9  Rep.  12. 

But,  although  the  jury  may  find  a  special  verdict  in  every  case  which 
appears  to  them  doubtful,  it  is  not  necessary,  even  for  their  own  safety, 
to  do  this  in  every  such  case ;  for  if  the  judge  before  whom  the  cause  is 
tried  take  upon  himself  to  determine  the  question  of  law,  concerning 
which  the  jury  doubt,  and  direct  them  to  find  a  general  verdict,  they  may, 
without  danger  to  themselves,  find  such  verdict. 

1  Inst.  228  ;  Vaugh.  145  ;  Ld.  Raym.  1494  ;  Fost.  25G,  257. 

If,  upon  the  trial  of  a  person  indicted  for  murder,  it  appear  that  at 
the  time  of  the  homicide  he  was  insane,  the  jury  may,  upon  being  in- 
formed by  the  judge  that  an  insane  person  cannot  be  guilty  of  murder,  it 
being  a  maxim  of  law  that  crimen  non  contrahitur  nisi  voluntas  sit  no- 
cendi,  find  a  general  verdict  of  not  guilty. 

2  II.  II.  P.  C.  303 ;  Fost,  279.  |jBy  39  &  40  G.  3,  c.  94,  where  it  shall  be  in  evi- 
dence that  a  person  charged  with  treason,  murder,  or  felony,  was  insane  at  the  com- 
mission of  the  offence,  the  jury  shall  be  required  to  find  that  fact  specially,  and  to 
declare  whether  such  person  was  acquitted  on  account  of  insanity.|| 

If,  upon  the  trial  of  a  person  indicted  for  murder,  the  judge  be,  upon 
all  the  circumstances  of  the  case,  of  opinion  that  the  homicide  is  justifi- 
able, the  jury  may  find  a  general  verdict  of  not  guilty. 

2  II.  II.  P.  C.  303  ;  1  Hawk.  70 ;  Fost.  279. 

If,  upon  the  trial  of  a  person  indicted  for  murder,  the  judge  be,  upon 
all  the  circumstances  of  the  case,  of  opinion  that  the  homicide  amounts 
to  manslaughter,  the  jury  may  find  a  verdict  of  manslaughter. 

It  is  said,  that  if  the  jury  are  dissatisfied  with  the  determination  of  the 
judge,  as  to  the  question  of  law  concerning  which  they  doubt,  they  are 
not  obliged  to  follow  his  direction,  but  may  find  a  special  verdict.  But  it 
is  likewise  said,  that  the  jury  will,  if  they  are  well  advised,  find  a  general 
verdict,  in  every  case  wherein  the  judge  determines  the  question  of  law 
concerning  which  they  doubt,  and  directs  them  to  find  such  verdict. 

Ld.  Raym.  1494  ;  Fost.  250,  257. 

Nor  are  they  in  such  case,  although  the  judge  should  be  mistaken,  lia- 
ble to  an  attaint ;  for  as  it  is  only  said,  that  the  jury  are  liable  to  an  at- 
taint, where  they  will  take  upon  themselves  the  knowledge  of  the  law,  and 
mistake  the  law,  it  follows  that  they  are  not  liable  thereto  when  they  find 
according  to  the  direction  of  the  judge. 

1  Inst,  227 ;  4  Rep.  54. 

The  minutes  for  a  special  verdict  arc  to  be  approved  of  by  the  judge  ;  it 
being  his  province  to  take  care  that  the  question  of  law  be  fairly  stated, 
and  they  ought  to  be  delivered  to  the  jury  before  they  find  the  verdict. 

2  Lill.  Abr.  791,  F. 

If  this  be  not  done,  the  jury  may  find  a  general  verdict  without  incur- 
ring the  danger  of  an  attaint. 
2  Lill.  Abr.  790,  II. 


VERDICT.  311 

(D)  Of  a  Special  Verdict. 

The  minutes  for  a  special  verdict  intended  to  be  found  ought  to  be 
signed  by  one  of  the  counsel  for  each  party. 

But,  if  all  the  counsel  for  one  of  the  parties  refuse  to  sign  the  minutes 
for  a  special  verdict,  the  judge  may  direct  the  jury  to  find  one  from  the 
minutes  as  signed  by  one  of  the  counsel  for  the  other  party. 

2  Lill.  Abr.  793,  (G). 

It  is  the  duty  of  the  party,  at  whose  instance  a  special  verdict  was  found, 
to  draw  it  up  from  the  minutes :  but  either  of  the  parties  may  draw  it 
up ;  and  if  one  of  them  do  this,  and  the  other  neglect  to  pay  his  share  of 
the  expense,  the  court  will  not  hear  counsel  for  him  when  the  verdict  is 
set  down  for  argument. 

2  Lill.  Abr.  790,  (E). 

If  a  special  verdict  be  not  drawn  up  according  to  the  minutes,  as 
signed  and  approved  of  at  the  trial  of  the  cause,  the  court  may  order  it 
to  be  amended  from  the  minutes. 
2  Lill.  Abr.  790,  (D) ;  pMorse  v.  Chase,  4  Watts,  259.tf 

If  the  question  of  law  be  not  properly  stated  in  a  special  verdict,  and 
the  verdict  cannot  be  amended  from  the  minutes,  as  signed  and  approved 
of  at  the  trial  of  the  cause,  the  court  may  order  it  to  be  amended  from 
the  notes  of  the  judge  before  whom  the  cause  was  tried. 

2  Lill.  Abr.  790,  (D). 

It  is  in  one  book  laid  down  generally,  that  the  court  may  order  a 
special  verdict  to  be  amended,  from  the  notes  of  the  judge,  in  such  man- 
ner a3  to  bring  the  question  of  law  properly  before  the  court. 

2  Lill.  Abr.  797,  (II). 

It  is  in  another  book  laid  down,  that  the  court  may  order  a  special 
verdict  to  be  amended  as  to  a  matter  of  fact,  from  the  notes  of  the  judge 
before  whom  the  cause  was  tried. 

2  Roll.  Abr.  701,  pi.  16. 

In  an  action  of  trover  it  was  found  by  a  special  verdict,  that  the  de- 
fendant, who  was  a  considerable  farmer,  did  annually  buy  and  sell  for  gain, 
divers  large  quantities  of  potatoes ;  and  the  question  submitted  to  the  court 
was,  whether  he  was  a  trader  within  the  meaning  of  any  statute  of  bank- 
ruptcy ?  The  court  inclined  to  be  of  opinion  that  he  was ;  but  a  doubt 
arose,  whether  it  was  not  necessary  for  the  jury  to  have  found  the  quantity 
of  potatoes  which  the  defendant  did  annually  buy  and  sell,  that  the  court 
might  be  better  able  to  judge  how  far  he  sought  his  living  by  buying  and 
selling.  Pratt,  C.  J.,  did  not  think  it  necessary  that  this  quantity  should 
be  found,  it  being  in  his  opinion  sufficient,  if  the  defendant  did  in  any 
degree  seek  his  living  by  buying  and  selling.  Eyre,  J.,  and  Fortescue, 
J.,  being  of  a  different  opinion,  the  cause  was  adjourned.  A  motion  was 
afterwards  made,  upon  an  affidavit  of  the  quantity,  which  was,  at  the 
trial  of  the  cause,  proved  to  have  been  annually  bought  and  sold,  that  a 
venire  facias  de  novo  might  be  awarded.  This  was  not  awarded :  but 
the  special  verdict  was  ordered  to  be  amended  as  to  this.  The  reporter 
adds,  that  it  was  so  amended ;  and  that  at  another  day  judgment  was 
given  for  the  plaintiff. 

Stra.  513, 514,  Mayo  v.  Archer.  ||As  to  the  amending  of  special  verdicts,  vide  supra, 
Vol.  i.,  tit.  Amendment]] 


312  VERDICT. 

(D)  Of  a  Special  Verdict. 

It  seems,  however,  to  be  the  better  opinion,  that  the  court  cannot 
order  a  special  verdict  to  be  amended  as  to  a  matter  of  fact. 
|| See  Sponcer  v.  Goter,  1  II.  Black.  78;||  {but  see  1  Johns.  Rep.  149.} 
It  is  in  one  case  laid  down,  that  if  the  proper  facts  are  not  found  by 
the  special  verdict,  the  court  will  not  hear  the  question  of  law  argued ; 
because  no  judgmeut  can  be  given  upon  the  verdict :  but  will  award  a 
venire  facias  de  novo^1}  that  the  proper  facts  may  be  found. 

2  Lill.  Abr.  790,  (D),  792,  (B).  J1}  1  Hen.  &  Mun.  213,  Robinson's  Adm'r  v. 
Brock ;  Ibid.  387,  Pegram  v.  Isabel!  { 

In  another  case  it  is  laid  down,  that  if  a  proper  fact  be  omitted  in  the 
minutes  for  a  special  verdict,  the  court  cannot  order  the  verdict  to  be 
amended  as  to  this,  although  the  counsel  for  both  parties  consent  thereto  ; 
for  that  this  would  amount  to  making  a  new  verdict  as  to  that  fact  by 
the  court  and  counsel.  It  is  added,  that  the  court  will  in  such  a  case 
award  a  venire  facias  de  novo. 

2  Lill.  Abr.  791,  (B) ;  {1  Johns.  Rep.  150,  contra.} 

In  another  case  it  is   laid  down,  that  a  special  verdict,  in  which  the 
jury  have  omitted  to  find  a  proper  fact  is  not  good;  for  that  the  court 
will  never  determine  the  question  of  law,  unless  every  proper  fact  be 
found  by  the  jury. 
Gilb.  Eq.  R.  255,  256,  Lodge  v.  Jennings. 

The  opinion,  that  the  court  has  no  power  to  amend  a  special  verdict 

as  to  a  matter  of  fact,  is  moreover  confirmed  by  divers  cases  ;(a)  in  which 

it  is  laid  down,  not  only  that  every  proper  fact  must  be  found  by  the 

jury,  but  also  that  it  must  be  found  expressly ;  it  not  being  sufficient  for 

the  jury  to  find  I2}  evidence  or  circumstances,  from  which  the  court  may 

fairly  infer  a  fact. (b) 

||(a)  It  is  laid  down  in  a  valuable  work,  that  if  a  special  verdict  is  defective,  so  that 
the  courts  are  not  able  to  give  judgment  thereon,  they  will  amend  it  by  notes  of  coun- 
sel, or  even  by  an  affidavit  of  what  passed  on  the  trial.  See  Tidd's  Prac.  713,  897, 
(9th  edit. ;)  and  it  seems  that  special  verdicts  may  be  amended  by  the  judge's  or  coun- 
sel's notes  in  civil  cases.  Lord  Raym.  141,  335  ;  Manners  v.  Postan,  3  Bos.  &  Pul. 
343 ;  Salk.  47  ;  Bull.  N.  P.  320,  2  Lord  Raym.  1036.  If  misstated,  the  parties  will 
have  leave  to  amend  it.  1  Burr.  617.  (b)  On  this  ground  a  venire  de  novo  was  awarded 
in  Bird  v.  Appleton,  1  East,  111 ;  and  see  3  Taunt.  209.  But  it  is  sufficient  for  the 
jury  to  find  such  facts  from  which  the  court  may  draw  a  conclusion  of  law,  or  a  mixed 
conclusion  of  law  and  fact,  without  drawing  such  conclusion  themselves.  8  Price, 
256.||     {?j  1  Hen.  &  Mun.  235,  Henderson  v.  Aliens.} 

The  matter  in  issue  was,  whether  J  S  had  resigned  a  benefice  to  a  bishop. 
The  jury  found  an  instrument,  under  the  seal  of  the  bishop,  upon  which 
there  was  an  endorsement  that  J  S  did  resign  the  benefice  to  him,  and  that 
he  accepted  the  resignation.  The  verdict  was  holden  to  be  bad;  because 
it  did  not  find  expressly,  that  J  S  had  resigned  the  benefice. 

Noy,  147,  Smith  v.  Foavcs. 

An  estate  having  been  granted  by  copy  of  court-roll  to  three  persons 
for  their  lives,  the  matter  in  issue  was,  whether  a  heriot  was,  by  the  cus- 
tom of  the  manor,  due  upon  the  death  of  one  of  them.  The  jury  found, 
that  the  custom  of  the  manor  did  not  warrant  the  granting  of  an  estate 
for  three  lives.  The  verdict  was  holden  to  be  bad ;  because  it  only 
found  argunicntativcly,  that  a  heriot  ought  not  in  the  present  case  to  be 
paid;  whereas  the  jury  ought  to  find  every  fact  expressly. 

2  Roll.  Abr.  693,  (S),  pi.  1. 


VERDICT.  313 

(E)  The  Province  of  the  Court  on  a  Special  Verdict. 

If  the  matter  in  issue  be,  whether  an  estate  may  by  the  custom  of  a 
manor  be  granted  by  copy  of  court-roll  for  two  lives,  and  the  jury  find, 
that  an  estate  may  by  the  custom  of  the  manor  be  granted  for  three  lives, 
the  verdict  is  bad  ;  because  it  is  only  argumentative  to  say,  that,  inasmuch 
as  a  greater  estate  may  by  the  custom  of  the  manor  be  granted,  a  less 
one  may. 
2  Roll.  Abr.  693,  (S),  pi.  2. 

If  the  consequence  of  the  verdict  upon  an  indictment  may  be  corporal 
punishment,  every  proper  fact  must  be  found  expressly ;  it  not  being  suf- 
ficient for  the  jury  to  find  either  evidence  or  circumstances,  from  which 
the  court  may  fairly  infer  a  fact. 

12  Mod.  628,  Rex  v.  Plummer.  ||In  Ld.  Raym.  141,  Ld.  Holt  said,  a  special  ver- 
dict could  not  be  amended  by  the  notes  in  a  capital  case  as  in  civil  cases  ;  and  see 
Salk.  47 :  sed  vide  Stra.  844,  and  case  of  Sarah  Hazel,  MS.  24  G.  3  ;  2  Hawk.  P.  C. 
622,  (8th  ed.)|| 

j3  If,  in  a  special  verdict,  the  jury  find  the  issue,  all  they  find  beyond 

is  surplusage. 

United  States  v.  Bright,  Bright's  Trial,  199.  See  Cavene  v.  M'Michael,  8  S.  &  R. 
441 ;  Fisher  v.  Kean,  1  Watts,  259. 

If  instead  of  finding  facts,  the  special  verdict  sets  out  the  evidence,  a 
new  trial  will  be  granted. 
Clark  v.  Halberstadt,  1  Miles,  26. 

The  court  decide  the  law  upon  the  facts  stated  upon  a  special  verdict ; 
but  if  instead  of  a  general  conclusion,  the  jury  express  doubt  only  as  to 
particular  points,  the  court  will  decide  the  law  only  upon  those  points. 

Peterson  v.  United  States,  2  Wash.  C.  C.  R.  36. 

When  a  special  verdict  is  defective,  it  may  be  amended  from  the  notes 
of  counsel  or  on  affidavit. 
Morse  v.  Chase,  4  Watts,  259. 

On  a  special  verdict,  the  court  are  confined  to  the  facts  found. 
Crousillat  v.  Ball,  3  Yeates,  373 ;  Boiling  v.  The  Mayor,  &c,  3  Rand.  563. 

A  verdict  may  find  generally,  for  either  party,  dependant  upon  a  sin- 
gle point  of  law  presented  to  the  court,  although  such  verdict  is  not  a 
special  verdict. 

M'Michan  v.  Amos,  4  Rand.  184. 

A  special  verdict  is  defective,  which  does  not  find  whether  the  aban- 
donment was  in  reasonable  time. 
Chesapeake  Ins.  Co.  v.  Stark,  6  Cranch,  268. 

Where  the  essential  facts  are  not  directly  found  by  the  jury  in  a  special 
verdict,  although  there  is  sufficient  evidence  to  establish  them,  the  Supreme 
Court  will  not,  on  error,  render  a  judgment  on  such  imperfect  finding. 

Barnes  v.  AVilliams,  11  Wheat.  415. $ 

(E)  Of  the  Province  of  the  Court  where  a  Special  Verdict  is  found. 

If  the  jury,  after  finding  a  fact  specially,  take  upon  themselves  to  draw 
a  conclusion  not  warranted  by  law,  the  court  ought  not  in  giving  judg- 
ment to  pay  any  regard  to  the  conclusion  of  the  jury ;  because  they  ought 
not  to  have  drawn  such  conclusion. 

11  Rep.  10,  Priddle's  case. 

If  the  issue  in  an  assize  be,  whether  there  is  a  seisin,  and  the  jury,  after 
Vol.  X.— 40  2D 


314  VERDICT. 

(E)  The  Province  of  the  Court  on  a  Special  Verdict. 

finding  some  fact  specially,  conclude  with  saying  that  this  amounts  to  a 
seisin,  the  court  without  paying  any  regard  to  the  conclusion  of  the  jury, 
will  judge  whether  the  fact  found  do  amount  to  a  seisin. 
Bro.  Verd.  pi.  41. 

In  an  action  against  an  executor,  the  issue  was  whether  he  had  assets 
in  his  hands.  The  jury  found  that  the  defendant's  testator,  in  a  lease 
granted  by  him,  had  reserved  a  rent  to  himself,  his  heirs  and  assigns,  and 
that  the  defendant  had  received  the  rent  from  the  time  of  his  testator's 
death ;  and  they  concluded  with  saying  that  this  is  assets.  The  court 
held  the  conclusion  to  be  void ;  because  it  appeared  from  the  fact  found, 
that  the  rent  ran  with  the  reversion,  and  consequently  that,  as  it  did  not 
belong  to  the  executor,  but  to  the  heir,  it  was  not  assets. 

Dyer,  362  ;  Anon.,  Hob.  53. 

If  the  jury  find  a  deed  specially,  they  ought  to  find  it  in  hoec  verba, 
and  not  to  find  what  they  judge  to  be  the  substance  of  the  deed,  that  the 
court  may  have  an  opportunity  of  inspecting  the  deed,  in  order  to  put  a 
construction  thereupon  :  but  if  the  deed  be  lost,  it  is  the  duty  of  the  jury 
to  find  the  substance  thereof,  in  case  this  be  proved. 

Vaugh.  77,  Rowe  v.  Huntingdon;  ||Cro.  Eliz.  515  ;  2  "W.  Saund.  77  c. ;  Buzzard  v. 
Capel,  8  Barn.  &  C.  141.  || 

The  court  will  never  entertain  a  doubt,  concerning  any  thing  that  is 
not  submitted  to  their  consideration  by  a  special  verdict ;  but  will,  on  the 
contrary,  intend  every  thing  which  can  be  fairly  intended,  in  order  to 
support  the  verdict. 

5  Rep.  97,  Goodull's  case ;  ||0.  Bridgman's  R.  88,  474,  558. || 

The  question  submitted  to  the  court  by  a  special  verdict  was,  whether 
the  resignation  of  a  donative  to  the  donor  be  good ;  but  it  was  not  found 
that  the  donor  had  accepted  the  resignation.  It  was  holden,  that  the 
acceptance  of  the  resignation  should  be  intended :  and  by  the  court, — 
The  question  submitted  to  our  consideration  is,  whether  the  resignation 
of  a  donative  to  the  donor  be  good ;  and  we  will  never  entertain  a  doubt 
as  to  any  thing  whereof  the  jury  have  not  doubted. 

Cro.  Ja.  03  ;  Fairchild  v.  Gayre,  Hob.  261.  {Vide  1  Hen.  &  Mun.  387,  Pegram  v. 
Isabell.} 

In  an  action  of  ejectione  firmse  the  jury  found,  that  the  premises  in  ques- 
tion were  granted  by  letters  patent  of  King  Henry  the  Eighth,  and  they 
concluded  with  saying,  that  if  the  court  shall  be  of  opinion  that  the  letters 
patent  are  good,  then  they  find  for  the  defendant ;  but  if  the  court  shall  be 
of  opinion  that  the  letters  patent  are  void,  then  they  find  for  the  plaintiff. 
Upon  arguing  the  special  verdict  it  was  insisted  that,  as  no  title  to  the 
premises  is  found  in  the  plaintiff,  he  is  not  entitled  to  judgment,  even  if 
the  court  should  be  of  opinion  that  the  letters  patent  are  void.  Judgment 
was  given  for  the  plaintiff:  and  by  the  court, — As  the  question  submitted 
to  our  consideration  is,  whether  the  letters  patent  are  void,  and  we  are  of 
opinion  that  they  are  void,  we  will,  as  nothing  is  found  to  the  contrary,  in- 
tend, that  the  plaintiff  has  in  all  other  respects  a  good  title  to  the  premises. 

Cro.  Car.  22,  Castle  v.  Hobbs. 

||  If  the  verdict,  whether  general  or  special,  is  imperfect,  by  reason  of 

some  uncertainty  or  ambiguity,  or  by  finding  less  than  the  whole  matter  put 

in  issue,  or  by  not  assessing  damages,  the  court  will  award  a  venire  de  novo. 

Ld.  llayni.  1521,  1584;  Stra.  887,  1124;  2  Kcny.  388  ;  5  Burr.  2609;  7  Term  R. 

52 ;  1  East,  111 ;  2  Bing.  202;  4  Barn.  &  C.  09  ;  0  Dow.  &  Ry.  08. || 


VERDICT.  315 

(G)  Of  the  Power  of  a  Jury  to  depart  from  a  Verdict. 

0  "Where  a  special  verdict  is  imperfect,  by  reason  of  ambiguity  or  un- 
certainty, so  that  the  court  cannot  say  for  which  party  the  judgment 
ought  to  be  given,  a  venire  de  novo  will  not  be  awarded. 

Bellows  v.  The  Ilallowell  and  Augusta  Bank,  2  Mason,  31.0 

(F)  Of  a  Verdict  in  which  the  Jurors  did  not  all  agree. 

In  very  ancient  times,  it  was  not  necessary  in  a  civil  cause  for  all  the 
jurors  to  agree  in  a  verdict.  But  it  has  been  for  many  years  settled,  that 
if  in  a  civil  cause  the  jurors  do  not  all  agree  in  a  verdict,  the  verdict  is 
bad. 

2  II.  II.  P.  C.  297.     ||  As  to  the  unanimity  of  juries,  see  Barrington  on  Stat.  20. || 

In  an  assize,  the  justices  took  a  verdict  of  eleven  of  the  jurors,  the  twelfth 
not  having  agreed  therein.  The  verdict  was,  upon  great  deliberation, 
holden  to  be  bad ;  and  a  venire  facias  de  novo  was  awarded  :  and  by  the 
court, — The  justices  ought  not  to  have  taken  the  verdict,  but  to  have  car- 
ried the  jurors  with  them  in  a  cart,  until  they  all  agreed  in  a  verdict. 

41  Assize,  11 ;  Bro.  Verd.  pi.  49. 

The  twelfth  juror,  who,  instead  of  agreeing  with  his  fellows  in  the  ver- 
dict, said  he  would  rather  die  in  prison  than  agree  therein,  was  in  the  case 
last  cited  fined  and  imprisoned :  but  he  was  afterwards  discharged ;  and 
it  was  said,  that  no  man  ought  to  be  punished  for  not  agreeing  in  a  ver- 
dict, which  he  does  not  think  a  right  one. 

41  Assize,  11 ;  2  H.  H.  P.  C.  297.  ||  See  Fortescue  de  Leg.  by  Amos,  p.  99,  and 
the  books  there  cited.  || 

The  jurors  are  not  obliged  to  agree  in  the  reason  for  finding  a  verdict 
as  it  is  found ;  and  if  a  reason  be  given  by  one  or  more  of  them,  upon  a 
question  being  asked  by  the  judge,  for  finding  it  as  it  is  found,  this  is  not 
to  be  considered  or  recorded  as  part  of  the  verdict. 

Vaugh.  150,  Bushel's  case. 

P  A  verdict  will  not  be  set  aside  because  one  of  the  jurors  dissented  from 
the  verdict,  and  afterwards  agreed  with  the  remainder,  upon  condition  that 
no  verdict  should  be  rendered  unless  the  court  refused  to  discharge  them. 

Harrison  v.  Rowan,  4  Wash.  C.  C.  R.  32. 

A  verdict  will  not  be  set  aside  on  the  oath  of  one  of  the  jurors,  that  he 
did  not  assent. 

Clark  v.  Reade,  2  South.  480. 

"When  the  jury  agree  upon  a  verdict  during  the  adjournment  of  the 
court,  and  separate  by  permission,  if,  on  coming  into  court,  one  of  the 
jury  dissents,  judgment  cannot  be  entered  on  the  verdict. 

Lawrence  v.  Stearns,  11  Pick.  501. 

When  the  jury  seal  a  verdict  in  their  room,  and  afterwards  come  into 
court,  and  vary  its  terms,  the  latter  is  the  true  verdict. 
Rousseau  v.  Daysson,  8  Mart.  N.  S.  273. £/ 

(G)  Of  the  Power  of  the  Jury  to  depart  from  a  General  Verdict  after  it  is  given  in  open 

Court. 

If  a  jury,  who,  by  mistake,  or  from  partiality,  have  given  an  improper 
verdict,  do  of  themselves  give  a  diiferent  verdict  before  the  improper  ver- 
dict is  recorded ;  or,  if,  at  the  recommendation,  or  by  the  leave,  of  the 
judge,  they  go  together  again  before  the  improper  verdict  is  recorded,  and 


316  VERDICT. 

(II)  Where  a  Verdict  is  bad  for  Misbehaviour  of  Jurors. 

afterwards  give  a  different  verdict,  the  verdict  which  is  last  given  shall 
stand. 

1  Inst.  227 ;  Plow.  212 ;  2  H.  II.  P.  C.  299,  300.  j3  See  ante,  Amendment  and  Jeo- 
fail, (E,)  and  Assumpsit,  (F). 

In  a  writ  of  conspiracy  against  two,  the  jury  gave  a  verdict  of  guilty  as 
to  one,  and  of  not  guilty  as  to  the  other.  At  the  recommendation  of  the 
judge  they  went  together  again,  to  reconsider  their  verdict,  and  after- 
wards gave  a  verdict  of  guilty  as  to  both. 

Bro.  Jur.  pi.  7. 

The  title  to  three  acres  of  land  being  in  issue,  the  jury  as  to  one  of  the 
acres  gave  a  verdict  for  the  plaintiff,  and  as  to  another  for  the  defendant ; 
but  as  to  the  third  said  they  were  not  agreed.  By  leave  of  the  court 
they  went  together  again,  to  consider  of  a  verdict  as  to  the  third  acre. 
Afterwards,  without  taking  any  notice  of  the  verdict  already  given,  they 
gave  a  verdict  as  to  all  the  three  acres  for  the  plaintiff.  The  latter  ver- 
dict was,  upon  great  deliberation,  holden  to  be  good. 

Dyer,  204,  205. 

It  is  said,  that,  after  a  jury  have  given  a  verdict  of  not  guilty  in  an  in- 
dictment for  felony,  the  judge  may,  if  the  verdict  be  in  his  opinion  con- 
trary to  clear  and  full  evidence,  send  them  out  again  to  reconsider  their 
verdict  :  but  it  is  likewise  said,  that,  if  the  jury  will  stand  to  their  ver- 
dict, the  judge  is  bound  to  receive  it.  It  is  added,  that  the  king  may  in 
such  a  case  bring  an  action  of  attaint. 

2  II.  II.  P.  C.  310. 

||  Where  the  jury  on  the  trial  of  an  information  for  a  libel  were  not  all 
present  when  the  verdict  of  guilty  was  delivered,  and  it  was  therefore  un- 
certain whether  they  all  heard  the  verdict  pronounced  by  the  foreman, 
the  court,  on  these  facts  being  stated  by  the  judge  who  tried  the  cause, 
with  the  consent  of  the  defendant,  ordered  a  new  trial ;  but  they  refused 
to  hear  a  statement  of  one  of  the  jurymen  on  affidavit. 

Rex  v.  Wooller,  2  Stark.  R.  1 11.  Jj 

0  A  verdict  may  be  varied  or  changed  at  any  time  before  it  is  recorded, 

and  a  sealed  or  privy  verdict  may  be  changed  in  open  court. 

Edelen  v.  Thompson,  2  liar.  &  Gill,  31 ;  Adkius  v.  Blake's  Administrators,  2  J.J. 
Marsh.  42.  £/ 

(II)  In  what  Cases  a  Verdict  is  bad  on  account  of  Misbehaviour  in  one  or  more  of 

the  Jurors. 

If  the  jurors,  when  they  go  from  the  bar  to  consider  of  a  verdict,  do 
without  the  leave  of  the  court  take  with  them  any  writing  under  seal, 
which  has  been  given  in  evidence,  they  are  guilty  of  a  misbehaviour ; 
but  the  verdict  is  good. 

Bro.  Enquest,  pi.  49  ;  2  Roll.  Abr.  714,  pi.  0,  pi.  7. 

It  is  in  divers  books  laid  down  generally,  that  if  the  jurors,  when  they 
go  from  the  bar  to  consider  of  a  verdict,  do,  without  the  leave  of  the 
court,  or  the  consent  of  both  parties,  take  with  them  any  writing  not 
under  seal,  which  has  been  given  in  evidence,  they  are  guilty  of  a  mis- 
behaviour; but  that  the  verdict  is  good. 

1  Inst.  227  ;  Cro.  Eliz.  411;  12  Mod.  520. 

The  jurors,  when  they  went  from  the  bar  to  consider  of  a  verdict,  did, 
without  the  leave  of  the  court,  or  the  consent  of  both  parties,  take  with 


VERDICT.  317 

(II)  Where  a  Verdict  is  bad  for  Misbehaviour  of  Jurors, 
them  an  act  of  common  council  which  had  been  given  in  evidence.  The 
verdict  was  holden  to  be  good ;  and  by  Holt,  Ch.  J.— It  was  very  impro- 
per behaviour  in  the  jury :  but  as  the  act  of  common  council  was  evi- 
dence for  both  parties,  the  verdict  ought  to  stand.  In  the  case  of  Lady 
Joy,  a  verdict  was  set  aside,  because  the  jury  did,  without  the  leave  of  the 
court  or  the  consent  of  both  parties,  take  with  them  a  map  which  had  been 
given  in  evidence :  but  the  verdict  was,  in  that  case,  set  aside,  because 
the  map  was  evidence  for  only  one  party,  which  is  not  the  present  case. 
Ld.  Raym.  148,  Rex  v.  Burdett. 

After  the  jurors  were  gone  from  the  bar  to  consider  of  a  verdict,  one  of 
the  witnesses,  who  had  been  examined  on  the  part  of  the  defendant,  was 
sent  for  and  re-examined  by  them  ;  and  they  afterwards  gave  a  verdict 
for  the  defendant.  Complaint  being  made  of  this  to  the  judge,  the  jurors 
confessed  that  they  had  re-examined  the  witness ;  but  they  said,  that  the 
evidence  upon  the  re-examination  was  in  effect  the  same  as  he  had  given 
in  court.  The  verdict  was  holden  to  be  bad ;  and  a  venire  facias  de 
novo  was  awarded. 

Cro.  Eliz.  189,  Metcalfe  v.  Dean. 

In  another  case,  the  case  of  Metcalf  and  Dean  is  said  to  be  law ;  be- 
cause the  evidence  improperly  received  by  the  jurors  was  parol  evidence ; 
for  that,  as  the  witness  might  vary  in  his  evidence  upon  the  re-examina- 
tion from  what  he  had  given  in  court,  it  would  be  of  the  most  dangerous 
consequence  to  suffer  such  verdict  to  stand :  but  it  is  in  this  case^  said, 
that  there  is  not  so  much  danger  in  letting  a  verdict  stand,  where  the  jurors 
have  improperly  taken  with  them  written  evidence  which  has  been  given 
in  court ;  because  written  evidence  remains  always  the  same. 
Cro.  Eliz.  411,  Yicary  v.  Farthing. 

The  plaintiff  in  an  assize  delivered  a  writing  relative  to  the  matter  in 
issue  to  a  person  returned  upon  the  panel.  This  person  being  sworn  upon 
the  jury,  he,  after  the  jurors  were  withdrawn  to  consider  of  a  verdict, 
showed  the  writing  to  his  fellows.  A  verdict  being  given  for  the  plaintiff, 
the  court  was  moved  for  judgment.  For  the  plaintiff  it  was  said,  that  as 
the  writing  was  to  the  same  effect  as  some  of  the  evidence  given  in  court, 
the  behaviour  of  the  plaintiff  was  not  so  bad,  as  if  evidence  to  the  same 
effect  had  not  been  given  in  court.  It  was  holden  that  he  should  not  hare 
judgment ;  and  by  Gascoigne  and  Hulls  :  after  the  jurors  ay  ere  sworn  they 
ought  not  to  see  or  to  carry  with  them  any  writing,  except  it  has  been 
given  in  evidence,  and  was  delivered  to  them  by  order  of  the  court. 
11  Hen.  4,  17  b,  18  a. 

After  the  jurors  were  gone  from  the  bar  to  consider  of  a  verdict,  one  of 
them  went  from  his  fellows.  He  soon  after  returned  with  a  copy  of  a 
court-roll  in  his  hand,  and  told  them  that  the  merits,  with  which  he  was 
perfectly  well  acquainted,  were  with  the  plaintiff.  Hereupon  the  other 
jurors,  before  of  a  different  opinion,  were  prevailed  upon  by  him  to  give 
a  verdict  for  the  plaintiff.     The  verdict  was  afterwards  set  aside. 

1  Sid.  235,  Goodman  v.  Coddrington.  (3  If,  after  a  cause  is  submitted  to  them,  and 
before  the  jury  have  agreed  on  a  verdict,  they  separate  and  afterwards  return  a  verdict, 
it  will  be  set  aside.  Lester  v.  Stanley,  3  Day's  Cas.  237  ;  Howard  v.  Cobb,  3  Day's 
Cas.  310.J/ 

Upon  a  writ  of  error  it  was  assigned  for  error,  that  one  of  the  jurors  did, 
after  they  were  gone  from  the  bar  to  consider  of  a  verdict,  show  to  his  fel- 

2d2 


318  VERDICT. 

(II)  Where  a  Verdict  is  bad  for  Misbehaviour  of  Jurors. 

lows  a  writing  in  favour  of  the  plaintiff  that  had  not  been  given  in  evi- 
dence, by  reason  of  which  they  found  a  verdict  for  the  plaintiff.  It  was 
holden,  that  this  was  not  error :  and  by  the  court, — as  it  does  not  appear 
that  the  writing  was  delivered  to  the  juror  by  the  plaintiff,  it  shall  be  in- 
tended that  it  was  in  his  own  possession ;  and  if  so,  as  he  might  have 
given  the  writing  in  evidence,  it  was  lawful  for  him  to  show  it  to  his  fel- 
lows. Another  reason  is  given  why  this  was  holden  not  to  be  error; 
namely,  that  the  fact  did  not  appear  upon  the  postea  ;  and  this  seems  to 
be  the  better  reason :  for  the  other,  that,  as  the  writing  might  have  been 
given  in  evidence  by  the  juror,  it  was  lawful  for  him  to  show  it  to  his  fel- 
lows, does  not  seem  to  be  conclusive. 

Cro.  Eliz.  616,  Graves  v.  Short;  j|Bull.  N.  F.  308. ||  3  Though  some  of  the  jurors 
separated  from  their  fellows,  in  a  civil  case,  the  verdict  will  not  be  set  aside  for  this 
cause.     Oram  v.  Fisher,  7  Halst.  153. £/ 

It  is  said  in  one  book,  that  the  jurors  are  not  obliged  to  found  their 
verdict  entirely  upon  the  evidence  given  in  court ;  for  that  it  may  be  in 
part  founded  upon  their  own  personal  knowledge.  But  no  case  is  cited 
in  support  of  this  doctrine,  and  the  contrary  may  be  inferred  from  other 
books. 

Vaugh.  147,  Bushel's  case. 

It  is  in  one  book  said,  that  if  a  witness  named  in  a  deed  be  returned 
of  the  jury,  it  is  a  good  cause  of  challenge. 
1  Inst,  151. 

In  another  book  it  is  said,  that  one  of  the  jurors,  after  having  heard  all  the 
other  evidence,  was,  at  the  prayer  of  the  defendant's  counsel,  sworn,  and 
gave  evidence  in  court ;  from  whence  it  may  be  inferred,  that  he  could  not 
have  given  this  evidence  to  his  fellows  after  they  were  gone  from  the  bar. 

1  Sid.  133,  Fitzjames  v.  Moys. 

In  another  book  it  is  said,  that  if  a  person  returned  to  serve  upon  a 
jury  know  any  thing  relative  to  the  matter  in  issue,  it  is  his  duty  to  tell 
the  court  so,  that,  instead  of  being  sworn  upon  the  jury,  he  may  be 
examined  as  a  witness. 

7  Mod.  2,  Anon. 

It  may,  moreover,  be  inferred  from  the  practice  of  granting  a  new  trial 
because  a  verdict  is  contrary  to  evidence,  that  the  jurors  ought  to  found 
their  verdict  entirely  upon  the  evidence  given  in  court ;  for  if  they  have  a 
power  to  found  it  partly  upon  other  evidence,  it  would  be  quite  unreason- 
able for  the  judge  before  whom  the  cause  was  tried,  who  must  always  be 
a  stranger  to  what  did  not  pass  in  court,  to  report  that  a  verdict  is  con- 
trary to  evidence,  or  for  the  court  to  set  it  aside  as  being  so. 

If  a  juror  eat  or  drink  at  his  own  expense,  before  he  and  his  fellows 
have  agreed  in  a  verdict,  he  is  liable  to  be  fined ;  but  the  verdict  is  good. 

1  Inst.  227  ;  Bro.  Ycrd.  pi.  19 ;  Dyer,  218  ;  1  Ventr.  125  ;  12  Mod.  111. 

After  the  jurors  had  been  locked  up  together  some  time,  the  officer  who 
attended  them,  being  surprised  at  their  delay  in  agreeing  in  a  verdict, 
searched  them,  and  found  figs  in  the  pockets  of  three,  and  pippins  in  the 
pockets  of  two  others.  This  being  represented  to  the  judge,  the  three, 
who  confessed  the  having  eaten  of  the  figs,  were  fined  four  pounds  each ; 
and  the  other  two,  notwithstanding  they  declared  upon  oath  that  they  had 
not  eaten  of  the  pippins,  were  fined  forty  shillings  each:  but  the  verdi  ' 


VERDICT.  319 

(II)  Where  a  Verdict  is  bad  for  Misbehaviour  of  Jurors. 

was,  upon  conference  with  the  judges  of  the  other  courts,  holdcn  to  be 

good. 

1  Leon.  132,  Mounson  v.  "West.  |3ln  the  United  States,  generally,  the  jurors  are 
now  allowed  proper  refreshments.     See  Juries,  G,  Vol.  v.  p.  3G9.£f 

In  a  case  of  necessity,  as  if  a  juror  be  suddenly  taken  ill,  it  is  in  the 
power  of  the  court  to  suffer  him  to  eat  and  drink  at  his  own  expense, 
before  he  and  his  fellows  have  agreed  in  a  verdict. 

Ventr.  125. 

If  the  trial  of  a  cause  be  very  long,  it  is  at  this  day  usual  for  the 

court,  the   consent(a)  of  both  parties  being  first  obtained,  to  give  the 

jurors  leave  to  eat  and  drink  during  the  trial  at  their  own  expense,  or 

at  the  equal  expense  of  both  parties. 

\{a)  In  the  late  trials  for  treason,  the  jurors  were  permitted  to  eat,  drink,  and  retire 
to  rest,  attended  by  proper  officers,  without  requiring  the  formal  consent  of  the  parties. 
The  irregularity  Avas  sufficiently  justified  by  the  necessity  of  the  case.]  {3  Dall.  515. } 
||But  in  The  King  v.  Hardy,  Sta.  Tri.  24,  417,  the  court  refused  to  allow  them  to  sepa- 
rate even  with  the  prisoner's  assent;  aliter  in  Eliz.  Canning's  case,  Sta.  Tri.  19,  671 ; 
and  see  Sta.  Tri.  7,  500.  And  in  The  King  v.  Kinnear,  the  separation  of  the  jury, 
without  consent  of  the  defendant,  was  held  not  to  vitiate  the  verdict,  there  being  no 
suspicion  of  any  improper  communication.     2  Barn.  &  A.  462  ;  1  Chitt.  R.  401. || 

If  the  jurors  cat  or  drink  at  the  expense  of  one  party,  before  they 
have  agreed  in  a  verdict,  they  are  liable  to  be  fined ;  and  if  the  verdict 
be  in  favour  of  that  party,  it  is  bad ;  but  if  it  be  in  favour  of  the  other 
party  it  is  good. 

1  Inst.  227;  12  Mod.  111. 

It  is  said  in  one  book,  that  if  the  jurors,  after  they  have  agreed  in  a 
verdict,  eat  or  drink  at  the  expense  of  the  party  in  whose  favour  it  is, 
the  verdict  is  good. 

1  Inst.  227. 

But  it  is  in  another  book  laid  down,  that  the  jurors  can  never  be  said 
to  have  agreed  in  a  verdict,  unless  they  have,  by  giving  a  privy  verdict 
signified  to  the  judge  that  they  have  agreed  in  one. 

1  Ventr.  125. 

It  is  said  in  two  books,  that  although  the  jurors  have  given  a  privy 
verdict,  they  must  not  eat  or  drink  without  leave  of  the  court  until  they 
have  given  a  verdict  in  open  court. 

Bro.  Verd.  pi.  57  ;  Moor,  33. 

And  it  is  in  one  of  these  said,  that  although  the  jurors  may,  with  leave 
of  the  court,  eat  and  drink  after  they  have  given  a  privy  verdict,  they 
must  be  kept  together  until  they  have  given  a  verdict  in  open  court. 

Bro.  Verd.  pi.  57. 

The  jurors,  having  received  their  charge,  withdrew  to  consider  of  a 
verdict.  Before  the  rising  of  the  court,  they  came  into  court  to  ask  a 
question  of  the  judge  ;  which  being  answered,  they  again  withdrew.  At 
the  sitting  of  the  court  in  the  afternoon  of  the  same  day,  the  judge  was 
informed  that  two  or  three  of  the  jurors  were  in  court.  Being  asked  by 
the  judge  what  they  did  there,  and  having  answered  that  they  and  their 
fellows  could  not  agree  in  a  verdict,  they  were  ordered  to  go  to  their 
fellows.  A  verdict  was  afterwards  given  for  the  plaintiff,  and  the  judge 
did  not  report  that  it  was  contrary  to  the  evidence.  The  court  being 
moved  that  this  verdict  might  be  set  aside,  it  was  holden  to  be  good:  and 


320  VERDICT. 

(II)  Where  a  Verdict  is  bad  for  Misbehaviour  of  Jurors. 

by  the  court, — some  of  the  jurors  have  been  guilty  of  a  great  misbe- 
haviour, and  are  liable  to  be  fined ;  but,  as  the  plaintiff  has  not  been 
guilty  of  any  misbehaviour,  the  verdict  ought  to  stand. 

Barnes,  441,  Ld.  St.  John  v.  Abbot;  {1  Penn.  278,  Clarke  v.  Cole,  ace.} 
||  If  the  jurors  do  not  agree  in  their  verdict  at  the  assizes  before  the 
judges  are  about  to  leave  the  town,  though  they  are  not  to  be  threatened 
and  imprisoned,  the  judges  are  not  bound  to  wait  for  them,  but  may  carry 
them  round  the  circuit  in  a  cart. 

3  Black.  Com.  376. 

In  a  late  case,  however,  where,  after  the  trial  of  an  issue  out  of  Chan- 
cery, the  jury  were  locked  up  for  many  hours,  and  not  likely  to  agree, 
when  the  judge  was  about  to  leave  the  town,  he  took  upon  himself  to 
discharge  them  of  his  own  authority,  the  parties  declining  to  consent : 
but  if  it  had  been  a  cause  tried  at  nisi  prius,  between  A  and  B,  it  seems 
the  judge  would  have  ordered  them  to  follow  him  in  a  cart. 

Morris  v.  Davies,  3  Carr.  &  Pa.  427. || 

The  jurors  being  equally  divided  in  opinion,  threw  dice  for  whom  they 
should  find  a  privy  verdict,  and  found  one  for  the  party  in  whose  favour 
the  dice  came;  and  without  conferring  afterwards  together,  they  gave  a 
verdict  for  the  same  party  in  open  court.  The  verdict  was  set  aside  :  and 
by  the  court, — As  our  estates,  liberties,  and  lives  are  in  the  power  of 
jurors,  they  ought  to  be  very  circumspect  in  their  conduct.  In  this  case 
the  jurors  have  behaved  very  improperly,  for  they  were  determined  by 
chance  in  the  finding  of  their  privy  verdict ;  and  they  had  not  any  confer- 
ence together  afterwards,  before  they  gave  their  verdict  in  open  court. 

1  Freem.  415,  Ld.  Fitzwalter's  case.    /3See  Trial,  (L.)g/ 

P  In  a  case  where  each  of  the  jurors  set  down  the  sum  he  thought  proper 
for  damages,  the  whole  was  added  together,  and  then  divided  by  twelve, 
and  the  quotient  returned  as  the  verdict  of  the  jury.  Held,  to  be  irregu 
lar,  and  the  verdict  was  set  aside. 
Harvey  v.  Rickett,  15  Johns.  87.     But  see  Trial,  (L),  contrd.fj 
The  jurors,  who  could  not  agree  in  a  verdict,  drew  lots  for  whom  they 
should  find  one,  and  found  one  for  the  party  in  whose  favour  the  lot  was. 
The  verdict  was  set  aside ;  and  the  jurors  were  ordered  to  appear  in 
court. 

2  Lev.  205,  Foster  v.  Hawden. 

Another  verdict  was  for  the  same  reason  set  aside,  notwithstanding 
the  judge  reported,  that  the  party,  in  whose  favour  it  was,  ought  in  his 
opinion  to  have  had  a  verdict. 

Stra.  G42,  Hale  v.  Cove.     ||Vide  suprd,  tit.  Trial,  Vol.  ix.  p.  588,  613.|| 

A  verdict  was  set  aside,  because  the  jurors  were  determined  as  to  the 
damages  they  should  give  by  throwing  up  cross  or  pile,  whether  they 
should  give  five  hundred  pounds  or  three  hundred. 

Bunb.  51,  Mellish  v.  Arnold. 

If  the  jurors  who  cannot  agree  in  a  verdict  vote,  and  give  a  verdict  ac- 
cording to  the  greater  number  of  votes,  the  verdict  is  nevertheless  good. 
Comb.  14,  Anon. 

In  a  modern  case  wherein  the  jurors  voted  for  a  verdict,  soven  of  them 
were  for  finding  a  verdict  as  it  was  found,  and  no  objection  was  made  by 
the  other  live  when  the  verdict  was  given.  The  court  refused  to  set  aside 


VERDICT.  321 

(I)  Where  a  Verdict  is  bad  for  Misbehaviour  of  Parties. 

the  verdict:  and  by  Lee,  C.  J. — Nothing  was  in  this  case  determined  by 
chance.     The  five  jurors  might  ultimately  be  convinced  by  the  seven  :  but, 
if  they  only  acquiesced  in  the  finding  of  the  verdict,  that  is  sufficient ;  and 
they  shall  not  now  be  received  to  say  that  they  did  not  acquiesce. 
Sayer,  100,  Lawrence  v.  Boswell. 

A  verdict  was  set  aside  upon  an  affidavit  of  eleven  of  the  jurors,  that 

they  and  the  other  juror  had  agreed  to  give  a  verdict  for  the  plaintiff; 

but  that  the  foreman  had  given  a  verdict  for  the  defendant. 

Ca.  of  Pr.  in  C.  B.  GO,  Miles  V.  Baker;  ||Burr.  383.  But  that  the  court  cannot 
receive  such  affidavits,  see  Owen  v.  Warburton,  1  New  R.  329  ;  and  see  2  Stark.  Ill  ; 
8  Taunt.  26;  3  Bro.  &  Bing.  272;  7  Moo.  87,  and  tit.  Trial,  Vol.  ix.  588,  613.|| 
ft  Brewer  v.  Thompson,  Coxe,  32.$ 

It  is  said  that  a  misbehaviour  in  one  or  more  of  the  jurors  cannot  be 
assigned  for  error,  unless  the  misbehaviour  appear  upon  the  posted,  if  the 
cause  were  tried  at  nisi prius,  or  upon  the  record,  if  it  were  tried  at  bar; 
for  that,  if  a  misbehaviour  not  appearing  on  record  could  be  taken  advan- 
tage of  by  writ  of  error,  a  verdict  might  at  a  great  distance  of  time  be 
set  aside,  when,  by  reason  of  the  death  of  one  of  the  parties,  or  of  one  or 
more  of  the  jurors,  the  truth  of  the  misbehaviour  suggested  could  not  be 
properly  inquired  into. 

Cro.  Eliz.  616,  Graves  v.  Short;  ||Bull.  N.  P.  308.|| 

It  is  laid  down  in  two  cases,  that  the  court  will  not  set  aside  a  verdict 

for  misbehaviour  in  one  or  more  of  the  jurors,  unless  the  misbehaviour 

appear  upon  the  postca,  if  the  cause  were  tried  at  nisi  prius,  or  upon  the 

record,  if  it  were  tried  at  bar. 

Cro.  Eliz.  189,  Medcalf  v.  Dean,  Trin.  32  Eliz. ;  Cro.  Eliz.  411,  Vicary  v.  Farthing, 
Mich.  37  Eliz. 

But  the  court  in  a  subsequent  case  set  aside  the  verdict,  upon  an  affi- 
davit that  the  jurors  had  eaten  at  the  expense  of  the  party  in  whose  favour 
it  was  given,  before  they  had  agreed  in  the  verdict. 

1  Freeru.  79,  Bellamy  v.  Player,  Pasch.  23  Car.  2.     \\Sed  vide  snpru.\\ 

In  another  subsequent  case  the  court  set  aside  a  verdict,  upon  an  affi- 
davit of  the  officer  who  attended  the  jurors,  that  they  had  tossed  up  cross 
and  pile  for  whom  they  should  find  the  verdict,  and  had  found  one  ac- 
cordingly. 

2  Jon.  83,  Fry  v.  Hardy,  Mich.  29  Car.  2. 

||  The  court  will  not  receive  an  affidavit  of  partiality  and  prejudice  in 
one  of  the  jurymen  from  the  unsuccessful  party. 
7  Price,  203;  11  Price,  383.  || 

PA  verdict  will  not  be  set  aside  on  account  of  the  misbehaviour  of  a 
juror  towards  the  court,  unless  it  is  prejudicial  to  one  of  the  parties. 
Crane  v.  Sayre,  1  Ilalst.  110 ;  Board  v.  Cronk,  1  Halst.  119.£/ 

(I)  In  what  Cases  a  verdict  is  bad,  on  account  of  a  Misbehaviour  in  one  of  the  Parties. 

If  one  of  the  parties  speak  words  of  mere  civility  to  one  of  the  jurors, 
before  they  have  agreed  in  a  verdict,  the  verdict,  although  it  be  in  fa- 
vour of  such  party,  is  good. 

1  Ventr.  125,  Duke  of  Richmond  v.  Wise ;  2  Roll.  Abr.  716,  pi.  17. 

If  one  of  the  parties  say  these  words  to  one  of  the  jurors,  before  they 
have  agreed  in  a  verdict,  the  matter  is  clearly  of  my  side,  or  these  words, 
Vol.  X.— 41 


322  VERDICT. 

(I)  Where  a  Verdict  is  bad  for  Misbehaviour  of  Parties. 

I  hope  you  will  find  for  vie,  the  verdict,  if  it  be  in  favour  of  such  party, 
is  bad ;  but  if  it  be  in  favour  of  the  other  party,  it  is  good. 
1  Ventr.  125,  Duke  of  Richmond  v.  Wise ;  2  Roll.  Abr.  716,  pi.  17. 

||  Merely  desiring  a  juror  to  appear,  is  no  ground  for  setting  aside  a 
verdict.  But  where  it  was  sworn  that  handbills,  reflecting  on  the  plain- 
tiff's character,  had  been  distributed  in  court,  and  shown  to  the  jury,  on 
the  day  of  trial,  the  court  granted  a  new  trial,  and  would  not  receive 
from  the  jury  affidavits  in  contradiction,  although  the  defendant  denied 
all  knowledge  of  the  handbills. 
1  Stra.  643,  Coster  v.  Merest;  3  Bro.  &  Bing.  272. || 

If  one  of  the  parties  or  his  agent  deliver  to  the  jurors,  before  they  have 
agreed  in  a  verdict,  a  writing  relative  to  the  matter  in  issue  which  was 
not  given  in  evidence,  the  verdict  if  it  be  in  favour  of  such  party,  is  bad; 
but  if  it  be  in  favour  of  the  other  party,  it  is  good. 

1  Inst.  227. 

If  one  of  the  parties,  or  his  agent,  without  leave  of  the  court,  deliver 
to  the  jurors,  before  they  have  agreed  in  a  verdict,  a  writing  sealed  or 
not  sealed,  which  was  given  in  evidence,  the  verdict,  if  it  be  in  favour  of 
such  party,  is  bad ;  but  if  it  be  in  favour  of  the  other  party,  it  is  good. 

1  Inst.  227. 

And  it  is  said,  that  the  verdict,  if  it  be  in  favour  of  the  party  who  de- 
livered the  writing,  is  bad,  notwithstanding  the  jurors  afterwards  declare 
upon  oath,  that  they  never  read  the  writing ;  for  that  it  would  be  of  the 
most  dangerous  consequence,  if  the  jurors  should  be  suffered  to  receive  a 
writing  privately  from  one  of  the  parties. 

2  Roll.  Abr.  714,  pi.  6. 

After  the  jurors  were  gone  from  the  bar,  but  before  they  had  agreed  in 
a  verdict,  the  plaintiff's  attorney  delivered  to  them  a  book  which  had 
been  given  in  evidence.  A  verdict  being  afterwards  found  for  the  plain- 
tiff, Fenncr,  J.,  was,  upon  a  motion  to  set  it  aside,  of  opinion,  that,  as 
the  verdict  was  in  favour  of  the  party  in  behalf  of  Avhom  the  book  was 
delivered,  it  was  bad.  The  reporter  adds,  that  the  cause  was  adjourned  ; 
and  that  there  was  afterwards  judgment  for  the  plaintiff. 

Cro.  Eliz.  411,  Vicary  v.  Farthing;  /3Jessup  v.  Eldridge,  Coxe.  401. gj 

In  another  report  of  the  same  case  it  is  said,  that  Clinch,  J.,  as  well 
as  Fenner,  J.,  was  of  opinion  that  the  verdict  was  bad  ;  and  if  so,  notwith- 
standing the  plaintiff  had  judgment,  which  followed  of  course,  as  the 
court  was  equally  divided,  this  case  does  not  contradict  what  is  laid  down 
in  the  books  above  cited. 

Moor,  452. 

||  When  the  jury  have  withdrawn,  after  the  case  has  been  summed  up 
to  them,  the  court  will  not  permit  them  to  see  a  treatise  on  the  law  of 
the  subject,  even  with  consent  of  the  parties.  They  should  state  their 
difficulty  to  the  judge,  and  receive  his  direction  as  to  the  law. 

Burrows  v.  Unwin,  3  Car.  &  P.  310,  per  Ld.  Tcnterden,  C.  J.|| 

i$  If  a  person  claiming  under  the  same  title  with  a  party,  in  his  presence, 
though  without  any  interference  by  him,  endeavour  to  prejudice  a  jury 
in  favour  of  his  title,  a  verdict  for  him  will  be  set  aside. 

Chews  v.  Driver,  Coxe,  166. tf 


VERDICT.  323 

(K)  Of  a  Verdict  upon  an  informal  or  immaterial  Issue. 

If  an  issue  be  joined  upon  a  point  so  material,  that  the  determination 
thereof  will  determine  the  matter  in  question,  but  be  not  joined  properly, 
this  is  an  informal  issue. 

An  issue,  which  would  have  been  bad  upon  a  demurrer,  by  reason  of 
informality,  is  after  a  verdict  helped  by  the  32  II.  8,  c.  30,  the  joining 
of  issue  being  one  of  the  things  mentioned  in  that  statute. 

In  an  action  of  prohibition  to  a  suit  for  tithes,  the  plaintiff  alleged  a  pre- 
scription for  all  the  parishioners  to  clip  the  wool  from  the  necks  of  their 
sheep  in  order  to  preserve  them,  and  that,  in  consideration  of  paying  the 
tenth  fleece  when  the  sheep  should  be  sheared,  they  had  been  used  to  be 
discharged  of  the  tithe  of  the  wool  so  clipped  from  the  necks  of  their  sheep. 
The  defendant  traversed  the  prescription  in  this  matter,  absque  hoc,  that,  in 
consideration  of  paying  the  tenth  fleece  when  their  sheep  should  be  sheared, 
they  had  been  used  to  be  discharged  of  the  tithe  of  the  wool  so  clipped 
from  the  necks  of  their  sheep.  Issue  being  joined  upon  the  traverse,  and 
a  verdict  being  found  for  the  defendant,  the  court  was  moved,  that  a  con- 
sultation ought  not  to  be  awarded,  because  the  issue  is  not  well  joined. 
A  consultation  was  awarded :  and  by  the  court, — Although  the  issue  be 
not  aptly  joined,  it  is  after  a  verdict  helped  by  the  statute. 
Cro.  Ja.  576,  Jouce  v.  Parker. 

||  Where,  to  an  avowry  for  1201.  rent,  the  plaintiff  pleaded  in  bar  that  the 
said  120?.  was  not  due,  and  the  defendant  joined  issue  thereon,  and  at  the 
trial  it  appeared  that  only  24Z.  was  due,  upon  which  the  plaintiff  objected 
that  the  evidence  did  not  support  the  issue  joined  by  the  defendant,  and 
the  defendant  took  a  verdict  for  the  24L,  subject  to  the  opinion  of  the 
court,  the  verdict  was  held  to  cure  the  informality  of  the  issue. 

Cobb  v.  Bryan,  3  Bos.  &  Pul.  348.  || 

In  an  action  of  replevin  the  defendant  avowed  the  taking  as  a  distress  for 
rent  in  arrear,  which  he  claimed  under  a  grant  of  a  rent-charge  from  J  N 
the  heir  of  E  N,  who  was  seised  in  fee  of  the  land.  The  plaintiff  replied, 
the  E  N  was  seised  of  an  estate-tail,  and  that  upon  the  death  of  J  N  her 
son  became  entitled  to  the  land,  and  that  upon  his  death  it  descended  upon 
the  plaintiff;  and  he  traversed  the  seisin  of  E  N  in  fee.  Issue  being  joined 
upon  the  traverse,  and  a  verdict  being  found  for  the  defendant,  it  was  said 
upon  a  motion  in  arrest  of  judgment,  that  the  issue  is  immaterial ;  for  that, 
as  it  is  not  material  how  the  ancestor  of  the  grantor  of  the  rent-charge  was 
seised,  but  how  the  grantor  was  himself  seised,  the  traverse  ought  to  have 
been  upon  the  seisin  in  fee  of  the  grantor.  Judgment  was  given  for  the 
defendant :  and  by  the  court, — As  the  defendant  has  alleged  a  seisin  in 
fee  in  E  N,  her  seisin  in  fee  is  material,  and,  consequently,  was  travers- 
able; so  that,  although  this  be  not  so  apt  an  issue  as  might  have  been 
joined,  it  is  after  a  verdict  helped  by  the  statute. 
Cro.  Ja.  44,  Pigot  v.  Pigot. 

In  an  action  of  assumpsit  the  defendant  pleaded  not  guilty.  Issue 
being  joined  upon  the  plea,  a  verdict  was  found  for  the  plaintiff.  Upon  a 
motion  in  arrest  of  judgment  it  was  said,  that  the  issue  is  immaterial ;  but 
judgment  was  given  for  the  plaintiff:  and  by  the  court, — Although  this  be 
not  the  most  proper  issue,  and  would  have  been  bad  upon  a  demurrer,  yet, 
as  deceit  is  charged  in  the  declaration  in  an  action  of  assumpsit,  the  plea 
of  not  guilty  is  such  an  answer  thereto,  that  the  issue  joined  upon  it  is 


324  VERDICT. 

(K)  Verdict  upon  an  informal  or  immaterial  Issue. 

after  a  verdict  helped  by  the  statute.  Walmsley,  J.,  added — That  there  are 
many  precedents,  in  which  an  issue  joined  in  an  action  of  assumpsit  upon 
the  plea  of  not  guilty  has  been  tried,  and  judgment  has  been  given. 

Cro.  Eliz.  470,  Corbyn  v.  Brown ;  { 1  Hen.  &  Mun.  153,  Huncicutt  v.  Carsley,  S. 
P.,  where  not  guilty  was  pleaded  in  covenant.] 

{If  to  an  avowry  for  1207.  rent  in  arrear  the  plaintiff  plead  "  that  the 
said  1207.  is  not  due,"  and  the  defendant  join  issue  thereon,  and  at  the 
trial  it  appears  that  247.  only  is  due,  upon  which  the  plaintiff  objects  that 
the  evidence  does  not  support  the  issue  joined  by  the  defendant ;  yet  if  a 
verdict  be  taken  for  247.,  subject  to  the  opinion  of  the  court,  such  finding 
will  cure  the  defect  in  the  formality  of  the  issue.  The  substance  of  the 
issue  (which  was  to  ascertain  whether  any  rent  was  in  arrear)  is  rightly 
found,  and  therefore  any  informality  in  the  issue  shall  not  be  regarded. 
3  Bos.  &  Pul.  348,  Cobb  v.  Bryan.} 

If  an  issue  be  joined  upon  a  point  so  immaterial  that  the  determination 
thereof  will  not  determine  the  matter  in  question,  this  is  an  immaterial 
issue. 

An  immaterial  issue  is  not  helped  by  any  of  the  statutes  of  jeofails. 

Carth.  371 ;  1  Lev.  32 ;  ||2  Will.  Saund.  319  ;  and  see  tit.  Pleas  and  Pleadings,  (M).|| 

In  an  action  of  trespass  the  defendant  pleaded  an  accord  betwixt  J  S 
and  the  plaintiff  of  the  one  part,  and  himself  of  the  other.  The  plaintiff 
replied,  that  no  accord  was  made  betwixt  the  defendant  and  him.  Issue 
being  joined  upon  this  replication,  and  a  verdict  being  found  for  the  plain- 
tiff, it  was  holden,  that  no  judgment  could  be  given  by  reason  of  the  im- 
materiality of  the  issue ;  it  not  being  joined  upon  the  accord  pleaded  by 
the  defendant,  but  upon  a  different  accord. 

1  Roll.  11.  8G,  Carpenter  v.  Starr. 

In  an  action  of  trover  against  husband  and  wife,  which  charged  a  con- 
version by  the  wife,  both  the  defendants  pleaded  not  guilty.  Issue  being 
joined  upon  the  plea,  and  a  general  verdict  being  found  for  the  plaintiff, 
a  repleader  was  awarded :  and  by  the  court, — If  judgment  should  be  given 
for  the  plaintiff,  it  would  amount  to  saying,  that  the  husband  and  wife 
were  both  guilty  of  the  conversion ;  whereas  the  plaintiff  only  charges 
that  the  Avife  was  guilty  thereof. 

Cro.  Ja.  5,  Coxe  v.  Croswell. 

In  an  action  of  trover  the  defendant  pleaded  non  assumpsit.  Issue  being 
joined  upon  the  plea,  and  a  verdict  found  for  the  plaintiff,  a  repleader 
was  awarded  on  account  of  the  immateriality  of  the  issue. 

Ca.  of  Pr.  in  C.  B..  Noble  v.  Lancaster;  Barnes,  125,  S.  C. 

In  an  action  of  trespass  quare  clausumf regit  the  defendant  pleaded,  that 
the  place  in  which  the  trespass  is  charged  is  his  land.  The  plaintiff  re- 
plied, that  the  place  in  which  the  trespass  is  charged  is  his  land,  and  not 
the  land  of  the  defendant.  Issue  being  joined  upon  the  replication,  a 
verdict  was  found  for  the  plaintiff.  Upon  a  motion  in  arrest  of  judgment 
it  was  said,  that  the  issue  is  immaterial ;  for  that  the  place  in  which  the 
trespass  is  charged  may  be  the  estate  of  the  plaintiff,  and  yet  he  may  not  be 
in  the  possession  thereof,  which  he  must  be  in  order  to  maintain  this  action. 
The  plaintiff  had  judgment :  and  by  the  court, — It  is  found,  that  the  place 
in  which  the  trespass  is  charged  is  the  land  of  the  plaintiff;  and  we  will, 


VERDICT.  325 

(K)  Verdict  upon  an  informal  or  immaterial  Issue. 

after  a  verdict,  rather  intend  that  he  was  in  the  possession  thereof  than 
that  he  was  not. 

2  Stra.  973,  Cory  v.  Hinton.  ||  This  general  plea  of  liberum  iencmentum  is  contrary 
to  a  principle  in  pleading,  that  every  plea  should  contain  a  direct  and  positive  answer 
to  the  declaration,  so  as  to  bar  the  action  if  true  in  fact.  See  1  Will.  Saund.  299  e; 
and  Strange,  in  argument  in  the  principal  case,  admitted  that  both  the  pica  and  re- 
plication would  have  been  bad  on  demurrer.  And  in  Lambert  v.  Strother,  "Willes's 
R.  222,  Willes,  C.  J.,  thought  the  plea  was  confined  to  those  cases  where  it  is  used  as 
the  common  bar  only ;  but  where  the  declaration  ascertains  the  place,  he  thought  it 
could  not  be  supported  ;  and  see  Cocker  v.  Crompton,  1  Barn.  &  C.  489,  acc.\\ 

In  an  action  of  debt  upon  a  single  bill  the  defendant  pleaded  payment 
of  the  money  due  thereupon  ;  but  did  not  plead  an  acquittance.  Issue 
being  joined  upon  the  plea,  a  verdict  was  found  for  the  plaintiff,  and 
judgment  was  given  for  him.  A  writ  of  error  being  brought  in  the  Ex- 
chequer Chamber,  it  was  assigned  for  error,  that,  as  the  payment  of  the 
money  due  upon  a  single  bill  is  no  discharge  of  the  bill,  unless  there  be 
an  acquittance,  the  issue  is  immaterial.  The  judgment  was  affirmed : 
and  by  the  court, — If  the  verdict  had  been  for  the  defendant,  it  would 
perhaps  have  been  bad,  because  an  acquittance  could  not  upon  this  issue 
have  been  found ;  but,  as  the  verdict  finds  that  the  money  due  upon  the 
bill  is  not  paid,  it  virtually  finds  that  the  bill  is  not  discharged ;  and  the 
court  will  never  suffer  a  defendant  to  avail  himself  of  his  own  bad  plead- 
ing, in  order  to  deprive  a  plaintiff  of  the  benefit  of  a  verdict,  upon  which 
judgment  may  be  well  given. 

5  Rep,  43,  Nichol's  case ;  Moor,  692,  S.  C. 

In  an  action  of  ejectione  firmce  the  defendant  pleaded,  that  J  S,  being 
seised  in  fee  of  the  premise?,  demised  them  to  him  for  the  term  of  five 
years  ;  that  by  virtue  of  this  demise  the  defendant  entered,  and  was  pos- 
sessed, until  the  plaintiff's  lessor  disseised  him;  that  the  plaintiff's  lessor, 
being  seised  of  the  premises  by  the  disseisin,  demised  the  same  to  the 
plaintiff;  and  that  the  defendant  entered  upon  the  plaintiff,  as  it  was  law- 
ful for  him  to  do :  the  plaintiff  replied,  that  his  lessor  was  seised  in  fee, 
and  traversed  the  disseisin  of  the  defendant.  Issue  being  joined  upon 
the  replication,  a  verdict  was  found  for  the  plaintiff.  Upon  a  motion  in 
arrest  of  judgment  it  was  said  that,  as  the  defendant  was  by  his  own 
showing  only  a  termor,  he  could  not  be  disseised,  and,  consequently,  that, 
the  issue  being  immaterial,  no  judgment  could  be  given  upon  the  verdict. 
Judgment  was  given  for  the  plaintiff;  and  by  the  court, — If  a  verdict 
had  been  found  for  the  defendant,  it  would  have  been  bad ;  because  it 
would  have  found  a  disseisin  of  a  termor ;  but  as  the  verdict  is  for  the 
plaintiff,  judgment  may  be  well  given ;  because  it  only  finds  that  his 
lessor  did  not  disseise  the  defendant ;  and  the  court  will  never  suffer  one 
party,  if  consistently  with  the  rules  of  law  it  can  be  prevented,  to  avail 
himself  of  his  own  bad  pleading,  in  order  to  deprive  the  other  of  the 
benefit  of  a  verdict. 

Cro.  Ja.  678,  Johns  v,  Ridler. 

In  an  action  of  replevin  the  defendant  avowed  the  taking  as  a  distress 
for  an  arrear  of  rent,  due  to  him  under  a  demise  from  the  plaintiff  made 
at  A,  dated  1  Nov.,  18  Car.  2.  The  plaintiff  replied,  that  he  did  not 
make  a  demise  to  the  defendant  at  A,  dated  1  Nov.,  18  Car.  2,  in  man- 
ner and  form  as  alleged. (a)  Issue  being  joined  upon  the  replication,  the 
jury  found  a  verdict  for  the  plaintiff,  and  judgment  was  given  for  him. 

2E 


326  VERDICT. 

(L)  Of  a  Verdict  upon  an  Issue,  &c. 

A  writ  of  error  being  brought,  it  was  assigned  for  error,  that  the  issue  is 
immaterial ;  because  it  only  is,  whether  a  demise  was  made  by  the  plain- 
tiff to  the  defendant  at  a  place  certain,  and  upon  a  day  certain :  whereas, 
a  demise  at  any  other  place,  and  upon  any  other  day,  would  have  been 
sufficient  to  have  warranted  the  distress  of  the  defendant.  It  was  more- 
over said,  that  as  the  merits,  namely,  whether  there  was  a  sufficient  demise 
to  warrant  the  distress,  had  not  been  tried;  and  as  the  trial  thereof  had 
been  prevented  by  the  bad  pleading  of  the  plaintiff,  who  has  by  the  repli- 
cation made  the  place  and  day  of  the  demise  material,  neither  of  which 
is  in  such  case  material,  he  ought  not  to  have  judgment.  On  the  other 
side,  it  was  said,  that  this  is  at  most  only  a  misjoining  of  issue,  which  is 
after  a  verdict  helped  by  the  statute  of  jeofails. 

2  Lev.  11,  Holbech  v.  Bennett ;  2  Saund.  317,  S.  C.  ||  [a)  The  plea  in  bar  should 
have  been  "  that  he  did  not  demise  in  manner  and  form  as,"  &c,  and  the  issue,  "  that 
he  did  demise,"  &c. ;  for  the  day  and  place  were  quite  immaterial.  || 

The  opinion  of  the  court  was,  that  this  case  is  not  within  the  statute 
of  jeofails ;  (a)  and  that,  as  the  merits  have  not  been  tried,  the  plaintiff 
was  not  entitled  to  judgment  upon  the  verdict ;  but  as  it  appeared  that 
the  avowry  of  the  defendant  was  bad,  it  was  holden  the  plaintiff  was  en- 
titled to  judgment  upon  the  declaration  which  is  good;  and  the  judg- 
ment was  affirmed. 

||  As  to  the  award  of  a  repleader  on  an  immaterial  issue,  see  tit.  Pleas  and  Plead- 
ing, (M),  Vol.  vii.  p.  G58 ;  and  see  2  Will.  Saund.  319  ;  Stephen  on  Plead.  119. 
(a)  But  Hate,  C.  J.,  was  of  opinion,  that  the  issue  and  verdict  were  aided  by  the 
statute  of  jeofails.  2  Saund.  319.  And  Serjeant  Williams  is  clearly  of  the  same 
opinion,  as  it  was  an  informal  issue.    2  Will.  Saund.  319,  note  (0,)  (5th  edit.)|| 

||  Where  the  avowant  in  replevin  took  down  the  record  to  trial,  without 
adding  the  similiter  to  the  conclusion  of  the  plea  in  bar,  and  obtained  a 
verdict,  the  Court  of  C.  B.  set  it  aside  without  costs. 

Griffith  v.  Crockford,  3  Bro.  &  Bing.  1 ;  seel  vide  Saycr  v.  Pocock,  Cowp.  407  ; 
Grundy  v.  Mell,  1  New  R.  28.  || 

pin  general,  when  a  verdict  does  not  conclude  formally  in  the  words 
of  the  issue,  yet  if  the  point  in  issue  can  be  collected  from  the  finding, 
the  court  will  put  the  verdict  into  form,  and  make  it  serve  according  to 
the  justice  of  the  case. 

Porter  v.  Ilummery,  10  Mass.  64. 

A  special  verdict  in  ejectment  referred  the  construction  of  a  deed,  and 
other  evidences  of  title,  to  the  court,  but  they  were  not  made  a  part  of 
the  record.  The  court  held,  that  the  verdict  was  too  imperfect  to  render 
a  judgment  on  it,  although  there  was  a  deed  on  record,  forming  part  of 
a  bill  of  exceptions  taken  to  the  opinion  of  the  court,  on  a  motion  made 
for  a  new  trial. 

M'Arthur  v.  Porter's  Lessee,  1  Pet.  620. 

When  the  issue  is  an  immaterial  one,  the  verdict  ought  to  be  set  aside. 
Woods  v.  Hym's,  1  Scam.  105. £/ 

(L)  Of  a  Verdict  upon  an  Issue,  Part  of  which  is  insensible  or  insufficient. 

I  v  part  of  an  issue  be  insensible,  the  verdict  thereupon  found,  notwith- 
standing  it  be  a  general  one,  is  good;  for  the  court  will  not  intend  that 
part  of  the  damages  was  given  for  the  insensible  part.  On  the  contrary, 
the  court  will,  in  support  of  the  verdict,  intend  that  no  damages  were 
given  for  that  part. 

Carth.  131,  Nightingale  v.  Bridges,  Salk.  364. 


VERDICT.  327 

(M)  Of  a  Verdict  which  does  not  find  all  that  is  in  Issue. 

In  an  action  of  assumpsit,  the  plaintiff  declared  upon  the  custom  of 
merchants,  for  money  due  upon  a  promissory  note ;  and  he  likewise  de- 
clared upon  an  indebitatus  assumpsit.  Issue  "was  joined  upon  the  plea 
of  non  assumpsit,  and  a  general  verdict  was  found  for  the  plaintiff.  It 
being  upon  a  motion  in  arrest  of  judgment  holden,  that  a  promissory  note 
is  not  within  the  custom  of  merchants,  it  was  insisted,  that  the  court  may 
after  a  verdict  intend,  that  no  damages  were  given  on  account  of  the 
note.  The  judgment  was  arrested :  and  by  the  court, — As  the  note  is 
not  matter  insensible,  but  matter  insufficient  in  law,  the  court  must  intend 
that  part  of  the  damages  was  given  on  account  thereof;  and  if  it  was 
given  the  verdict  is  bad. (a) 

Salk.  129,  364,  Clark  v.  Martin.  || This  was  before  the  stat.  3  &  4  Ann.  c.  9.|| 
[(a)  This  inconvenient  and  ill-founded  rule,  that  where  there  are  several  counts,  entire 
damages,  and  one  count  is  had,  and  the  others  are  not,  this  shall  he  fatal,  upon  the 
fictitious  reasoning  delivered  in  the  text,  is  now  fully  settled  in  civil  cases  ;  though  it 
does  not  hold  in  the  case  of  criminal  prosecutions;  for  when  there  is  a  general  verdict 
of  guilty  in  an  indictment  consisting  of  several  counts,  if  anyone  of  them  is  good,  that 
is  held  to  be  sufficient.  Grant  v.  Astle,  Dougl.  730 ;  { 1  Johns.  Rep.  322.  The  Peo- 
ple v.  Curling. }  However,  though  this  distinction  has  been  made  in  civil  cases,  yet 
if  there  was  only  evidence  at  the  trial  upon  such  of  the  counts,  as  were  good,  and  con- 
sistent, a  general  verdict  may  be  altered  from  the  notes  of  the  judge,  and  entered  only 
on  those  counts  ;  but  if  there  is  any  evidence,  which  applied  to  the  other  bad  or  incon- 
sistent counts,  (as,  for  instance,  in  an  action  for  words,  where  some  actionable  words 
are  laid,  and  others  not  actionable,  j]  in  separate  counts,  ||  and  evidence  given  of  both 
sets  of  words,  and  a  general  verdict,)  there  the  postea  cannot  be  amended,  because  it 
would  be  impossible  for  the  judge  to  say  en  which  of  the  counts  the  jury  had  found 
the  damages,  or  how  they  had  apportioned  them.  In  such  a  case  the  only  remedy  is 
by  awarding  &  venire  de  novo.  Eddowes  v.  Hopkins,  Dougl.  377;]  {5  Johns.  Rep. 
430,  Chcetham  v.  Tillotson  ;  Ibid.  470,  Backus  v.  Richardson.}  \\Aliter  where  the 
actionable  words,  and  those  not  actionable,  are  in  the  same  count.  See  Willes,  443  ; 
2  Will.  Saund.  171  b,  c.  (5th  edit.) ;  Tidd's  Prac.  919,  922,  (9th  edit.)  The  applica- 
tion to  amend  the  verdict  by  the  judge's  notes,  must  be  made  in  reasonable  time.  1 
Barn.  &  A.  101,  Harrison  v.  King:  and  to  the  judge  who  tried  the  cause,  not  to  the 
court.     1  Chit.  R.  283.|| 

Pin  an  action  of  trespass  de  bonis  aspoj'tatis,  the  plaintiff  pleaded  pro- 
perty in  A  B  and  not  in  the  plaintiff,  and  justified  as  deputy-sheriff;  re- 
plication de  sua  injuria,  and  traversing  that  the  property  was  in  A  B ; 
rejoinder  that  it  was  in  A  B  ;  issue  and  verdict  of  guilty.  Held,  that  the 
verdict  was  argumentative,  but  whether  it  was  amendable,  or  cured  by 
the  statute  of  jeofail,  quaere. 

Oerrish  v.  Train,  3  Pick.  124. 0 

(M)  Of  a  Verdict  which  does  not  find  all  that  is  in  Issue. 

If  a  verdict  only  find  part  of  what  is  in  issue  it  is  bad  ;  because  the 
jury  have  failed  in  their  duty,  which  was  to  find  all  that  is  in  issue. 
1  Inst.  227;  {1  Day,  189,  Smith  v.  Raymond.} 

In  an  information  for  intruding  into  a  messuage  and  a  hundred  acres 
of  land,  issue  was  joined  upon  the  plea  of  not  guilty;  the  jurors  found  for 
the  plaintiff  as  to  the  land,  but  were  silent  as  to  the  messuage.  The  ver- 
dict was  holden  to  be  bad. 

1  Inst.  227. 

In  an  action  of  debt  the  plaintiff  declared  for  seven  pounds.  The  de- 
fendant pleaded  nil  debet,  and  issue  was  joined  upon  the  plea.  The  jury 
found  that  the  defendant  owed  the  plaintiff  six  pounds,  but  were  silent  as 


328  VERDICT. 

(M)  Of  a  verdict  which  does  not  find  all  that  is  in  Issue. 

to  the  seventh  pound.  The  verdict  was  upon  a  writ  of  error  holden  to  be 
bad. 

Cro.  Eliz.  133,  Finnymore  v.  Stanley. 

pWhen  a  verdict  decisive  of  the  case  is  found  on  one  or  more  of  several 
issues,  and  the  jury  cannot  agree  as  to  one  other  issue,  the  party  in  whose 
favour  the  verdict  is  found  may  waive  the  other  issue,  or  consent  that  a 
verdict  be  entered  on  it  against  him. 

Sutton  v.  Dana,  1  Mete.  383.£f 

In  an  action  of  trespass  the  plaintiff  declared  for  the  breaking  of  his 
close,  for  the  beating  of  his  servant,  and  for  the  carrying  away  of  his 
goods.  The  defendant  pleaded  not  guilty,  and  issue  was  joined  upon  the 
plea.  The  jury  found  the  defendant  guilty  of  breaking  the  close,  but 
were  silent  as  to  the  beating  of  the  servant  and  the  carrying  away  of  the 
goods.  The  verdict  was  holden  upon  a  motion  in  arrest  of  judgment  to 
be  bad,  because  it  does  not  find  all  that  is  in  the  issue,  and  a  venire  facias 
de  novo  was  awarded. 

3  Leon.  82,  Rosse's  case. 

The  declaration  in  an  action  of  trespass  brought  by  baron  and  feme 
charged  the  beating  of  both.  The  defendant  pleaded  not  guilty,  and  issue 
was  joined  upon  the  plea.  The  jury  found  the  defendant  guilty  of  beating 
the /erne,  but  were  silent  as  to  the  beating  of  the  baron.  Upon  a  motion  in 
arrest  of  judgment  the  verdict  was  holden  to  be  bad,  because  it  does  not 
find  all  that  is  in  issue,  and  a  venire  facias  de  novo  was  awarded. 

Ilardr.  1GG,  Rochel  and  his  Wife  v.  Steedle. 

If  in  an  indictment  for  privately  conveying  ducats  into  the  prosecutor's 
pocket,  with  an  intent  to  charge  him  with  a  robbery,  the  jury  found  the  de- 
fendant guilty  of  the  fact,  but  are  silent  as  to  the  intent,  no  judgment 
can  be  given,  the  verdict  being  incomplete. 

Sayer,  3G,  Rex  v.  Simons. 

In  an  action  of  debt  upon  a  charter-party,  by  which  the  defendant  had 
contracted  to  pay  fifty  guineas  a  month  for  the  use  of  a  ship,  the  plain- 
tiff alleged,  that  five  hundred  pounds  were  due  to  him  for  the  use  of  the 
ship  for  a  time  therein  mentioned.  The  defendant  pleaded,  that  he  had 
paid  the  plaintiff,  at  the  rate  of  fifty  guineas  a  month,  for  all  the  time  he 
had  had  the  use  of  the  ship.  Issue  being  joined  upon  the  plea,  the  jury 
found,  that  three  hundred  pounds  were  due  to  the  plaintiff  for  the  use  of 
the  ship  ;  but  were  silent  as  to  the  residue  of  the  five  hundred  pounds. 
Upon  a  writ  of  error  it  was  assigned  for  error,  that  the  verdict  does  not 
find  all  that  is  in  issue.  In  support  of  the  verdict  it  was  said,  that,  as 
the  issue  is  special,  and  the  jury  have  ascertained  what  is  upon  the  whole 
due  to  the  plaintiff  for  the  use  of  the  ship,  no  other  action  can  be  brought 
for  the  use  thereof,  for  any  part  of  the  time  mentioned  in  the  declaration. 
The  judgment  was  reversed :  and  by  the  court, — There  is  no  difference, 
as  to  the  question  before  the  court,  betwixt  the  case  of  a  verdict  upon  a 
special  issue,  and  that  of  a  verdict  upon  a  general  issue;  for  the  jury 
must  in  either  case  find  all  that  is  in  issue. 

Stra.  1089,  Hooper  v.  Shepherd. 

||Where  several  pleas  were  pleaded  to  an  action  of  debt  on  bond,  and 
issues  were  taken  on  them,  and  as  to  some  of  them  the  jury  found  no  ver- 
dict, the  court  awarded  a  venire  de  novo. 

Hick  v.  Keats,  4  Barn.  &  0.  69.  || 


' 


VERDICT.  329 

(jVI)  Of  a  Verdict  ■which  does  not  find  all  that  is  in  Issue. 

If  there  are  several  counts  in  a  declaration,  and  the  verdict  is  taken 
upon  only  one  of  the  counts,  it  is  good,  provided  all  that  is  in  issue  upon 
that  count  be  found,  because  every  count  is  to  be  considered  as  a  distinct 
declaration. 

Salk.  133,  Hill  v.  Lewis  ;  1  Ventr.  27  ;  12  Mod.  5. 

If  a  verdict  find  all  that  is  in  issue  in  one  count,  which  is  material,  it  is 
good ;  for,  if  any  thing  not  material  be  put  in  issue,  the  verdict  is  good, 
notwithstanding  it  be  silent  as  to  that. 

1  Inst.  227. 

In  an  action  of  debt,  for  the  penalty  given  for  not  having  set  out  tithes, 
the  plaintiff  declared  upon  a  lease  from  J  S,  of  the  tithes  of  the  parish 
of  A,  for  the  term  of  six  years,  in  case  J  S  should  so  long  live,  and  con- 
tinue to  be  parson  of  the  parish  of  A.  The  defendant  pleaded  nil  debet, 
and  issue  was  joined  upon  the  plea.  The  jury  found  a  lease  from  J  S, 
of  the  tithes  of  the  parish  of  A,  for  the  term  of  six  years,  in  case  J  S 
should  so  long  live  ;  but  they  found  likewise,  that  the  words  and  continue 
to  be  parson  of  the  parish  of  A  were  not  contained  in  the  lease.  Ilaugh- 
ton,  J.,  was  of  opinion,  that  the  plaintiff  ought  not  to  have  judgment ; 
but  the  other  justices  were  of  a  different  opinion :  and  by  them, — The 
lease  found  is  in  substance  the  same  as  that  which  is  in  issue ;  for,  al- 
though the  words  and  continue  to  be  parson  of  the  parish  of  A,  are  not 
contained  in  the  lease,  they  are  implied  therein.  It  was  moreover  said, 
that  the  lease  is  only  matter  of  inducement,  the  not  having  set  out  the 
tithes  being  the  gist  of  the  action ;  for  which  reason,  as  enough  is  found 
to  show  that  the  tithes  were  not  set  out,  and  that  the  plaintiff  had  a  right 
thereto,  he  ought  to  have  judgment. 

Cro.  Ja.  328,  Wheeler  v.  Hajdon  ;  ||  Gwill.  Tjth.  Ca.  258;  Eag.  &  Y.  219.|| 

In  an  indictment  which  contained  three  counts,  the  first  count  charged 
the  forging  of  a  certain  bond ;  the  second  charged  the  publishing  of  the 
forged  bond  by  the  defendant ;  the  third  charged  the  publishing  of  a 
bond,  knowing  it  to  have  been  forged.  The  jury  found  that  it  was  proved 
that  the  defendant  did  forge  the  bond  set  out  in  the  indictment,  and  that 
he  did  publish  the  same ;  and  then,  without  saying  any  thing  as  to  the 
fact  charged  in  the  third  count,  they  concluded  with  saying,  that  if  upon 
this  evidence  the  court  shall  be  of  opinion  that  the  defendant  is  guilty  of 
the  fact  charged,  then  they  find  him  guilty ;  but  if  the  court  shall  be  of 
opinion  that  he  is  not  guilty  thereof,  then  they  find  him  not  guilty.  It 
was  said  for  the  defendant,  that  this  verdict  is  bad ;  because  it  does  not 
find  all  that  is  in  issue.  It  was  holden,  that  the  court  is  not  in  this  case 
bound  by  the  conclusion  of  the  jury ;  but  that,  upon  what  is  found  to  have 
been  proved,  it  is  the  duty  of  the  court  to  adjudge  the  defendant  guilty 
of  the  forging  and  the  publication  charged  in  the  two  first  counts,  and 
not  guilty  as  to  the  residue ;  and  judgment  was  given  accordingly. 

Stra.  844,  845,  Res  v.  Hayes. 

It  is  said  that  the  court  will  never  award  a  venire  facias  de  novo  in  an 
indictment  for  a  capital  offence ;  although  a  material  fact  be  not  found 
by  the  verdict.  It  is  likewise  said,  that  if  the  facts  found  be  not  suffi- 
cient to  warrant  a  judgment  against  the  defendant  in  an  indictment  for 
a  capital  offence,  the  court  will,  provided  a  verdict  be  sufficient  to  found 

Vol.  X.— 42  2  e  2 


330  VERDICT. 

(jST)  Of  a  Ycrlict  which  finds  a  Thing  that  is  not  in  Is^ue. 

a  judgment  upon,  give  judgment  for  him ;  for,  that  no  man's  life  ought 
to  be  twice  in  jeopardy  for  the  same  oifence. 
Stra.  387,  Rex  v.  Huggins.    ||  See  5  Term  R.  454.|| 

pin  Pennsylvania,  when  there  are  several  issues,  a  general  finding  for  the 
plaintiff  is  considered  as  equivalent  to  an  express  negative  to  each  plea. 

Sirohecker  v.  Drinkle,  16  S.  &  R.  33. 

A  jury  must  pass  on  all  the  matters  submitted  to  them,  and  cannot  find 
a  verdict  on  a  part  of  the  plaintiff's  demand  without  deciding  the  other. 

Broehway  v.  Kinney,  2  Johns.  210;  Van  Bonthuyson  v.  Dj  Witt,  4  Johns.  213.$ 

(N)  Of  a  Verdict  which  finds  a  Thing  that  is  not  in  Issue. 

A  verdict  is  not  bad  on  account  of  its  finding  a  thing  that  is  not  in 
issue,  it  being  a  maxim,  that  utile  per  inutile  not  vitiatur;  and  the  court 
will,  in  giving  judgment,  reject  that  part  of  the  verdict  which  relates  to 
the  thing  not  in  issue  as  surplusage  ;  inasmuch  as  the  jury  had  nothing 
to  do  therewith. 

1  Inst.  227. 

If  the  matter  in  issue  be,  whether  there  are  assets,  and  the  jury  find 
that  there  are  assets  beyond  the  seas,  the  verdict  is  nevertheless  good ; 
for  the  court  will,  in  giving  judgment,  reject  the  words  beyond  the  seas 
as  surplusage. 

G  Rep.  57,  Dowdale's  case,  Cro.  Ja.  55. 

If  the  matter  in  issue  be,  whether  J  S  died  seised  of  certain  premises, 
and  the  jury,  after  finding  that  he  did  die  seised  thereof,  find  that  con- 
tinual claim  has,  since  the  death  of  J  S,  been  made  by  J  N,  the  verdict 
is  nevertheless  good ;  for  the  court,  in  giving  judgment,  will  not  pay  any 
regard  to  what  is  found  concerning  the  continual  claim. 

Bro.  Nugat.  pi.  25 ;  Bro.  Verd.  pi.  68. 

If  in  an  action  upon  the  case  for  words,  the  jury,  after  finding  that  the 
defendant  spoke  the  words  in  issue,  find  that  he  spoke  other  slanderous 
words,  the  verdict  is  nevertheless  good  ;  for  the  court  will,  in  giving  judg- 
ment, reject  the  finding  of  the  other  slanderous  words  as  surplusage. 

Cro.  Ja.  407,  Sidenham  v.  Man;  2  Roll.  Abr.  717,  pi.  4. 

In  an  action  of  scire  facias  against  the  executor  of  J  S,  the  matter  in 
issue  was,  whether  J  S  had  been  taken  in  execution  by  virtue  of  a  capias 
ad  satisfaciendum  set  out  in  the  declaration,  which  issued  upon  a  judg- 
ment obtained  by  the  plaintiff  against  J  S.  The  jury  found,  that  J  S 
was  not  taken  in  execution  by  virtue  of  the  capias  ad  satisfaciendum  set 
out  in  the  declaration,  but  that  he  was  taken  in  execution  by  virtue  of 
an  alias  capias  ad  satisfaciendum  which  issued  upon  the  judgment.  This 
was  holden  to  be  a  verdict  for  the  plaintiff:  And  by  the  court, — As  it  is 
found  that  J  S  was  taken  in  execution  by  virtue  of  a  capias  ad  satisfa- 
ciendum which  issued  upon  the  judgment,  the  word  alias,  which  only  shows 
the  particular  species  of  capias  ad  satisfaciendum,  ought  to  be  rejected 
as  surplusage. 

Hob.  53,  54,  Foster  v.  Jackson. 

In  an  action  of  assumpsit,  the  jury  found  a  verdict  for  the  plaintiff,  and, 
after  assessing  damages  to  the  amount  of  thirty  pounds,  added  the  follow- 
ing words,  the  damages  to  be  paid  in  dyeing,  if  by  law  they  may  be  so  paid. 
These  words  being  omitted  in  the  judgment,  a  writ  of  error  was  brought, 


VERDICT.  331 

(N)  Of  a  Verdict  which  finds  a  Thing  that  is  not  in  Issue. 

and  the  omission  was  assigned  for  error.  The  judgment  was  affirmed  : 
And  by  the  court, — As  the  verdict  which  finds  for  the  plaintiff  and  as- 
sesses damages  is  a  complete  verdict,  what  is  added  as  to  the  manner  of 
paying  the  damages  is  nugatory,  and  being  so  it  is  very  properly  omitted 
in  the  judgment. 

Cro.  Car.  219,  Taylor  v.  Willes. 

After  an  indictment  found  at  an  assize  had  been  moved  by  certiorari 
into  the  King's  Bench,  the  defendant  pleaded  not  guilty,  and  issue  was 
joined  upon  the  plea  by  the  king's  coroner.  The  jury  found  the  defend- 
ant guilty  of  the  premises,  prout  the  coroner  has  complained  against  him. 
Upon  a  motion  in  arrest  of  judgment  it  was  said  that  the  verdict  was 
bad,  because  as  the  indictment  was  found  at  an  assize,  the  coroner  has 
not  complained  against  the  defendant ;  and  that  the  fault  is  not  cured  by 
any  of  the  statutes  of  jeofails.  The  verdict  was  holden  to  be  good  : 
And  by  the  court, — The  verdict  which  finds  the  defendant  guilty  of  the 
premises  is  complete,  and,  consequently,  as  that  which  follows  concerning 
the  complaint  of  the  coroner  ought  to  be  rejected  as  surplusage, (a)  it  will 
not  want  the  help  of  any  of  the  statutes  of  jeofails. 

2  Saund.  308,  Ilex  v.  Urlyn.     ||  (a)  As  to  rejecting  matter  as  surplusage,  see  Pleas 
and  Pleadings,  (I)  4,  in  Vol.  vii.|| 

Upon  an  issue  directed  out  of  the  Court  of  Chancery,  the  jury  found 
a  verdict  in  the  following  words.  Our  verdict  is,  that  the  defendant  did 
not  assume  to  the  plaintiff  in  manner  and  form  as  in  the  record  is  sup- 
posed ;  but  notwithstanding  this,  if  the  two  witnesses,  J  S  and  J  N,  have 
testified  the  truth,  as  we  think  they  have,  then  we  find,  that  the  defend- 
ant did  assume  to  reassure  to  the  plaintiff  so  much  of  the  land  mentioned 
in  the  record  as  the  defendant  had  bought  of  the  plaintiff,  upon  the  pay- 
ment of  two  hundred  and  fifty  pounds  by  the  plaintiff  to  the  defendant 
within  three  years  after  the  assumption :  and  if  the  court  shall  think  so, 
we  find  for  the  plaintiff,  and  assess  damages  to  the  amount  of  twenty 
pounds,  and  costs  to  the  amount  of  four  pounds.  The  verdict  was  de- 
creed by  the  Chancellor  to  be  a  verdict  for  the  defendant ;  and  Dyer,  J., 
and  Ayloffe,  J.,  whom  he  called  to  his  assistance ;  and  the  counsel  for 
both  parties  were  satisfied  with  the  decree. 

Dyer,  372,  HeyAvard's  case. 

If  a  verdict,  after  finding  the  matter  in  issue,  find  a  thing  which  might 
have  been  pleaded  in  abatement,  as  joint-tenancy,  the  verdict  is  good ; 
for,  as  the  defendant  did  not  avail  himself  of  the  joint-tenancy,  by  plead- 
ing it  in  abatement,  the  court  will  reject  it  as  surplusage. 

Bro.  Nugat.  pi.  27. 

In  an  action  of  waste,  the  plaintiff  declared,  that  the  defendant,  being 
seised  in  fee  of  the  premises  on  which  the  waste  was  committed,  had  en- 
feoffed J  S  to  the  use  of  the  defendant  for  life,  with  remainder  to  the  plain- 
tiff in  fee.  The  defendant  pleaded,  that  the  feoffment  was  to  the  use  of 
himself  in  fee,  absque  hoc,  that  it  was  to  the  use  of  himself  for  life,  with 
remainder  to  the  plaintiff  in  fee.  Issue  being  joined  upon  the  plea,  the 
jury  found,  that  the  feoffment  was  to  the  uses  mentioned  by  the  plaintiff: 
but  they  found  further,  that  the  estate  for  life  reserved  to  the  defendant 
was  without  impeachment  of  waste  ;  and  submitted  it  to  the  court  whether 
the  plaintiff  ought  to  have  judgment.  Wyndham,  J.,  was  of  opinion,  that 
the  plaintiff  ought  to  have  judgment ;  inasmuch  as  it  appeareth,  from 


332  VERDICT. 

(0)  Of  a  Verdict  which  varies  from  the  Issue. 

what  is  found  by  the  verdict,  that  he  had  no  cause  of  action.  But  An- 
derson, C.  J.,  Rhodes,  J.,  and  Perriam,  J.,  were  of  opinion,  that  the  plain- 
tiff ought  to  have  judgment;  and  by  Anderson,  C.  J.,  the  matter  in  issue 
is  found  for  the  plaintiff;  and  as  the  defendant  did  not  avail  himself  of 
the  privilege  of  being  dispunishable  of  waste,  by  pleading  it,  the  jury,  it 
not  being  in  issue,  had  nothing  to  do  therewith ;  for  which  reason  that 
which  is  found  concerning  it  ought  to  be  rejected  as  surplusage. 
3  Leon.  80,  Pcpy's  case. 

In  an  action  of  assumpsit  against  an  executor,  the  plaintiff  declared 
upon  a  promise  of  the  defendant's  testator.  Issue  being  joined  upon  the 
plea  of  non  assumpsit,  the  jury  found  for  the  plaintiff:  but  they  likewise 
found,  that  the  testator  tvas  dead  before  the  day  on  which  the  'promise  is 
alleged  to  have  been  made.  The  verdict  was  holden  to  be  good  :  And  by 
the  court, — As  the  jury  have  found  for  the  plaintiff,  their  finding,  that 
the  testator  ivas  dead  before  the  day  on  which  the  promise  is  alleged  to 
have  been  made,  ought  to  be  rejected  as  surplusage. 

Cro.  Car.  130,  Inkersalls  v.  Sams. 

j3  A  verdict  which  contradicts  the  facts  admitted  in  the  pleadings,  is  to 
be  disregarded. 

M'Ferran  v.  Taylor,  3  Cranch,  280.0 

(0)  Of  a  Verdict  which  varies  from  the  Issue. 

A  verdict  which  varies  from  the  issue  in  a  matter  of  substance  is  bad. 

What  is  such  a  variance  betwixt  a  verdict  and  the  issue  as  will  make 
the  verdict  bad,  is  best  to  be  learned  from  considering  the  determinations 
upon  the  point,  the  principal  of  which  in  divers  actions  shall  be  men- 
tioned. 

1.  In  an  Action  of  Assumpsit. 

The  plaintiff  in  an  action  of  assumpsit  declared  upon  a  contract  by  two 
persons.  Issue  being  joined  upon  the  plea  of  non  assumpsit,  the  jury 
found  that  the  contract  was  made  by  only  one  of  the  persons.  This  was 
holden  to  be  a  verdict  for  the  defendant ;  the  contract  found  being  differ- 
ent from  that  which  is  an  issue. 

2  Roll.  Abr.  707,  pi.  49. 

The  plaintiff  in  an  action  of  assumpsit  declared  upon  a  promise  by  four 

persons.     The  defendants  all  joined  in  the  plea  of  non  assumpserunt  infra 

sex  annos,  and  issue  was  thereupon  joined.     The  jury  found,  that  one  of 

the  defendants  had  promised  within  six  years ;  but  they  likewise  found, 

that  the  other  three  had  not.     It  was  holden,  that,  as  the  jury  had  not 

found  the  promise  which  -was  in  issue,  the  verdict  was  for  the  defendants. 

2  Ventr.  151,  Bland  v.  Haselrig  and  others.     ||  But  see  Whitcomb  v.  Whiting, 
Doug.  G52;  2  Will.  Saund.  G4.|| 

111  an  action  of  assumpsit,  the  defendant,  an  administrator,  pleaded,  that 
three  judgments  had  been  obtained  against  him  as  administrator  to  J  S, 
that  those  judgments  arc  still  in  force,  and  that  he  has  assets  in  his  hands 
only  to  the  value  of  five  shillings,  which  are  liable  to  those  judgments.  The 
plaintiff  replied,  that  those  judgments  are  kept  in  force  by  fraud,  and  issue 
was  joined  upon  the  replication.  The  jury  found  that  one  of  those  judg- 
ments was  kept  in  force  by  fraud.     The  verdict  was  holden  to  be  for  the 


VERDICT.  333 

(0)  Of  a  Verdict  which  varies  from  the  Issue. 

plaintiff:  And  by  the  court, — As  the  defendant's  plea  is  found  to  be 
false  as  to  part,  the  plaintiff  ought  to  have  judgment. 

Carth.  196,  Beake  v.  Kent.  ||See  1  Will.  Saund.  334,  335,  337  ;  2  Chit,  on  Plead. 
G37.|| 

In  an  action  of  assumpsit  the  plaintiff  declared,  that  the  defendant  was 
indebted  to  him  in  the  sum  of  twenty  pounds,  which  he  promised  to  pay 
upon  request.  The  defendant  having  pleaded  non  assumpsit,  the  jury 
found  that  the  defendant  was  indebted  to  the  plaintiff  in  the  sum  of  ten 
pounds  upon  one  account,  and  in  the  sum  of  ten  pounds  upon  another. 
The  verdict  was  holden  to  be  bad ;  because,  as  the  issue  is  joined  upon 
one  promise,  and  the  jury  have  found  two  promises,  the  variance  is  in  a 
matter  of  substance. 

2  Roll.  Abr.  719,  pi.  18. 

In  an  action  of  assumpsit,  it  was  alleged  in  the  declaration,  that  the  de- 
fendant, in  consideration  that  the  plaintiff  would  give  credit  for  certain 
goods  to  J  S,  promised  to  pay  for  the  same,  when  he  should,  after  the  de- 
livery of  any  goods,  be  requested  so  to  do.  The  defendant  pleaded  non 
assumpsit,  and  issue  was  joined  upon  the  plea.  The  jury  found,  that  the 
defendant  did  promise  to  pay  for  the  goods,  but  they  did  not  find  that  a 
request  of  payment  had  been  made  to  him  after  the  delivery  of  the  goods. 
The  verdict  was  holden  to  be  bad :  And  by  the  court, — As  the  duty  could 
not  in  this  case  arise  until  a  request  was  made,  the  request  is  material, 
and,  consequently,  as  this  is  not  found,  the  verdict  is  bad. 

Brownl.  13,  Gore  v.  Colethorpe;  ||Cro.  Eliz.  85,  91 ;  2  H.  Blac.  131 ;  1  Stra.  89; 
Carter  v.  Ring,  3  Camp.  K.  459.  || 

It  has  been  heretofore  holden,  that  if  the  plaintiff  in  an  action  of  assump- 
sit declare  upon  an  indebitatus  assumpsit,  he  cannot  recover  a  less  sum  than 
he  declares  for.  In  an  action  of  assumpsit  the  plaintiff  declared,  that  the 
defendant  was  indebted  to  him  in  the  sum  of  fifty  pounds,  which  he  pro- 
mised to  pay.  The  jury  found,  that  as  to  forty-seven  pounds,  parcel  of 
the  said  fifty  pounds,  the  defendant  had  promised  to  pay  it,  but  they  like- 
wise found,  that  as  to  the  residue  he  had  not  promised  to  pay  it.  The 
verdict  was  holden  to  be  for  the  defendant ;  because  the  promise  found 
is  different  from  that  which  is  in  issue. 

Cro.  Eliz.  292,  Bagnal  v.  Sacheverel. 

But,  however  it  may  have  been  heretofore  holden,  it  is  at  this  day  cer- 
tain, that  the  plaintiff  in  an  action  of  asswnpsit  may  recover  a  less  sum 
than  he  has  declared  for,  notwithstanding  he  have  declared  upon  an 
indebitatus  assumpsit. 

And  it  was  in  a  very  late  case  holden,  that,  although  the  plaintiff  in  an 
action  of  assumpsit  have  declared  upon  an  insimul  computassent,  he  may 
recover  damages  to  a  less  amount  than  the  balance  alleged  to  be  due : 
And  by  Yates,  J. — As  the  promise  upon  which  an  action  of  assumpsit  is 
founded  cannot  extend  further  than  to  what  is  justly  due,  the  jury,  in 
assessing  damages,  have  a  power  to  divide  the  damages  alleged  in  such 
manner  that  the  plaintiff  may  recover  what  is  justly  due. 

MS.  Itep.  Thompson  v.  Spencer,  East.  8  G.  3,  in  K.  B. ;  ||2  W.  Saund.  122 ;  and  so 
in  debt  the  plaintiff  may  now  recover  less  than  he  demands  in  the  declaration.  M'Quil- 
lin  v.  Cox,  1  II.  Black.  249.  || 

0  After  a  verdict  in  an  action  of  assumpsit,  the  promise  alleged  in  the 
declaration  will  be  considered  an  express  or  even  a  written  promise. 

Huntingdon  v.  Todd,  3  Day's  Cas.  479  ;  Insurance  Company  of  Alexandria  v. 
Young,  1  Cranch,  341 ;  Becker  v.  Beeker,  7  Johns.  99.£f 


334  VERDICT. 

(0)  Of  a  Verdict  which  varies  from  the  Issue. 
2.  In  an  Action  vpon  the  Case. 

In  an  action  upon  the  case,  the  plaintiff  declared,  that  the  defendant,  of 
whoni  he  had  bought  two  oxen,  warranted  them  to  be  sound,  and  he  alleged 
that  they  were  unsound.  The  defendant  pleaded  not  guilty,  and  issue  was 
joined  upon  the  plea.  The  jury  found  the  defendant  guilty  as  to  one  of 
the  oxen,  and  not  guilty  as  to  the  other.  Upon  a  motion  in  arrest  of  judg- 
ment, it  was  insisted,  that,  as  the  issue  is,  whether  the  two  oxen  warranted 
to  be  sound  were  unsound,  and  the  verdict  finds  that  only  one  of  them  wa3 
unsound,  the  plaintiff  ought  not  to  have  judgment.  Judgment  was  given 
for  the  plaintiff:  and  by  the  court, — As  the  action  is  not  in  this  case  founded 
upon  the  contract,(a)  but  upon  the  deceit,  the  verdict  is  good. 

Cro.  Eliz.  884,  Gravenor  v.  Mete.  \\(a)  But  in  contract  the  defendant  would  have 
committed  a  breach  if  either  of  them  were  unsound. || 

In  an  action  upon  the  case  for  a  false  return  to  a  mandamus,  the  plaintiff 
declared  that  he  was  chosen  bailiff  of  the  borough  of  A  upon  the  first  day 
of  October  in  a  certain  year,  which  was  alleged  to  be  the  customary  day 
for  choosing  a  bailiff.  The  defendant  pleaded  not  guilty,  and  issue  was 
joined  upon  the  plea.  It  was  proved  at  the  trial,  that  the  plaintiff  was 
chosen  bailiff  upon  the  twenty-ninth  day  of  September  in  the  year  men- 
tioned, and  that  this  was  the  customary  day  for  choosing  a  bailiff.  It  was 
objected,  that  as  the  day,  which  is  in  this  case  parcel  of  the  custom,  is 
material,  the  election  proved  is  a  different  one  from  that  which  is  in  issue, 
and  that  for  this  reason  the  plaintiff  ought  not  to  recover.  The  objection 
was  overruled,  and  by  Holt,  C.  J. — As  the  substantial  part  of  the  issue, 
namely,  whether  the  plaintiff  was  elected  according  to  the  custom,  is 
proved,  it  is  not  material  whether  the  election  was  upon  the  day  mentioned 
in  the  declaration,  or  not. 

Carth,  228,  Vaughan  v.  Lewis. 

In  an  action  upon  the  case,  in  which  the  declaration  charged  the  enclos- 
ing of  three  acres  of  land,  the  plaintiff  alleged  a  right  of  common  therein 
as  appurtenant  to  sixty  acres  of  land,  sixty  acres  of  meadow,  and  eighty 
acres  of  pasture.  The  defendant  pleaded  not  guilty,  and  issue  was  joined 
upon  the  plea.  It  being  found  by  the  jury,  that  the  plaintiff  had  a  right 
of  common  in  the  three  acres  of  land,  as  appurtenant  to  a  messuage,  and 
ninety  acres  of  land,  meadow,  and  pasture  thereunto  appertaining ;  and 
for  the  residue,  that  he  had  not  common  ;  judgment  was  given  for  the 
plaintiff.  A  writ  of  error  being  brought,  it  was  assigned  for  error,  that 
the  right;  of  common  found  by  the  verdict  is  different  from  that  which  is 
in  issue.  The  judgment  was  affirmed  :  And  by  the  court, — The  right  of 
common  -alleged  is  only  matter  of  inducement ;  the  substantial  part  of 
the  issue  being  whether  a  wrong  has  been  done  to  the  plaintiff  by  enclosing. 
If  the  issue  had  been,  whether  the  plaintiff's  right  of  common  were 
appurtenant  to  so  much  land,  meadow,  and  pasture,  as  is  mentioned  in 
the  declaration,  the  verdict  would  peradventure  have  been  bad  ;{a)  but  it 
is  not  material  upon  the  present  issue,  whether  the  plaintiff's  right  of 
common  be  found  precisely  as  it  is  alleged  or  not. 

Cro.  Ja.  630,  Eardley  v.  Turnock.  \\{a)  Sed  vide  llickctts  v.  Salwey,  2  Barn.  &  A. 
360.||  ' 

An  action  upon  the  case  in  the  nature  of  a  conspiracy  being  brought 
against  two,  they  both  pleaded  not  guilty,  and  issue  was  joined  upon  the 
ptca.     The  jury  found  only  one  of  the  defendants  guilty.    The  ve.  diet  was 


VERDICT.  335 

(0)  Of  a  Verdict  which  varies  from  the  Issue. 

holden  to  be  good :  and  by  the  court, — In  an  action  upon  the  case,  in 
the  nature  of  a  conspiracy,  one  person  may  be  found  guilty. 

2  Roll.  Ahr.  708,  pi.  52. 

But  if,  in  an  action  of  conspiracy  against  two,  issue  bo  joined  upon  the 

plea  of  not  guilty,  and  the  jury  find  only  one  of  them  guilty,  the  verdict 

is  bad,  because  one  person  cannot  be  guilty  of  a  conspiracy. (a) 

2  Roll.  Abr.  703,  pi.  52.  (a)  ||  As  a  conspiracy  cannot  be  committed  by  one  person 
alone,  if  all  the  defendants  prosecuted  are  acquitted  but  one,  and  the  conspiracy  be 
not  charged  to  be  with  persons  unknown,  it  is  clear  the  acquittal  of  the  rest  is  the 
acquittal  of  that  one  also.  1  Hawk.  P.  C.  c.  72,  \  8 ;  3  Chit.  C.  Law,  1141.  But  if 
two  persons  be  indicted  for  conspiracy,  and  only  one  of  them  appear  and  take  his 
trial,  he  may  be  found  guilty  though  the  other  defendant  be  absent  and  has  not 
pleaded.  Rex  v.  Kinnersley  and  Moore,  1  Stra.  193  ;  and  this  although  the  other 
conspirator  named  in  the  indictment  was  dead  before  the  indictment  was  preferred. 
Rex  v.  Nicholls  andBygrove,  2  Stra.  1227;  13  East,  412,  notis.\\ 

3.  In  an  Action  of  Covenant. 

The  plaintiff  in  an  action  of  covenant  declared,  that  upon  the  sale  of 
certain  land  by  the  defendant  to  him,  which  was  estimated  at  a  certain 
number  of  acres,  the  defendant  covenanted  to  pay  him  at  the  rate  of 
eleven  pounds  by  the  acre,  for  as  many  acres  as  should  be  wanting  of  the 
number  the  land  was  estimated  at ;  and  he  alleged,  that  as  many  acres 
were  wanting,  as  did,  at  the  rate  of  eleven  pounds  by  the  acre,  amount 
to  the  sum  of  seven  hundred  pounds.  The  defendant  pleaded,  that  there 
were  not  so  many  acres  wanting,  as  did,  at  the  rate  of  eleven  pounds  by 
the  acre,  amount  to  seven  hundred  pounds,  and  issue  was  joined  upon 
the  plea.  The  jury  found  a  general  verdict  for  the  plaintiff;  but  they 
assessed  damages  to  the  amount  of  only  four  hundred  pounds.  The  ver- 
dict was  objected  to  as  being  variant  from  the  issue ;  but  it  was  holden 
to  be  good :  and  by  the  court, — As  the  design  of  the  present  action  was 
to  recover  damages,  it  was  entirely  in  the  breast  of  the  jury,  notwith- 
standing they  found  all  the  acres  to  be  wanting,  to  assess  such  damages 
as  appeared  to  them  to  be  reasonable. 

2  Roll.  Abr.  703,  Hicks  v.  Goats.  ||  The  plea  here  ought  to  have  traversed  that  there 
were  any  acres  wanting,  since  the  defendant  is  not  at  liberty  to  plead  so  as  to  tie  the 
plaintiff  up  to  prove  the  tvhole  of  the  damages  stated  ;  and  if  there  was  one  acre  want- 
ing, the  plaintiff  was  entitled  to  recover  pro  tanto,  notwithstanding  his  assignment  of 
a  breach  went  further.  See  2  W.  Saund.  207,  n.  24;  Cobb  v.  Bryan,  3  Bos.  &  Pul. 
348,  and  1  AV.  Saund.  312  d ;  and  tit.  Pleas  and  Pleadings,  (11),  Vol.  vii.  p.  572.  |j 

4.  In  an  Action  of  Debt. 

In  an  action  of  debt  upon  the  2  and  8  E.  6,  for  not  setting  out  tithes, 

the  defendant  pleaded  nil  debet ;  the  jury  found  the  value  of  the  tithes 

subtracted  to  be  less  than  the  value  alleged  in  the  plaintiff's  declaration. 

This  was  holden  to  be  a  verdict  for  the  plaintiff:  and  by  the  court, — 

There  is  a  difference  betwixt  an  action  of  debt  founded  upon  a  specialty, 

or  upon  a  contract,  and  one  founded  upon  a  statute,  giving  an  uncertain 

sum  by  way  of  severalty.     In  the  former  case,  the  verdict  cannot  be 

for  a  less  sum  than  is  demanded,  unless  it  be  found  that  part  of  the  debt 

was  satisfied :  but  in  the  latter  case,  the  verdict  is  good,  although  a  less 

sum  than  is  demanded  is  found  to  be  due. 

Cro.  Ja,  449,  Pemberton  v.  Skelton.  ||  But  in  debt  the  plaintiff  may  now,  in  any 
Case,  recover  less  than  he  demands.    1  H.  Black.  249.  || 

The  plaintiff  in  an  action  of  debt  declared  for  the  sum  of  twenty-four 


336  VERDICT. 

(0)  Of  a  Verdict  which  varies  from  the  Issue. 

pounds  eight  shillings.  The  defendant  pleaded  nil  debet,  and  issue  was 
joined  upon  the  plea.  The  jury  found  that  the  defendant  was  indebted 
to  the  plaintiff  in  the  sum  of  twenty-four  pounds  ;  but  they  likewise  found 
that  he  was  not  indebted  to  him  in  the  further  sum  of  eight  shillings.  It 
was  holden  that  the  plaintiff  should  have  judgment :  and  by  the  court, — 
The  eight  shillings  may  have  been  paid. 
2  Roll.  Abr.  702,  Baugh  v.  Philips. 

The  plaintiff  in  an  action  of  debt  declared  for  the  sum  of  twenty  pounds. 

The  defendant  pleaded  nil  debet,  and  issue  was  joined  upon  the  plea.    The 

jury  found  that  the  defendant  was  indebted  to  the  plaintiff  in  the  sum  of 

forty  pounds.     This  was  holden  to  be  a  verdict  for  the  defendant. (a) 

2  Roll.  Abr.  702,  pi.  3.     (a)  ||  It  would  now  clearly  be  held  a  verdict  for  the  plaintiff.  || 

In  an  action  of  debt  brought  against  an  executor,  the  plaintiff  declared 
for  the  sum  of  twenty  pounds,  the  defendant  pleaded  that  he  had  no  as- 
sets in  his  hands,  and  issue  was  joined  upon  the  plea.  The  jury  found 
that  the  defendant  had  assets  in  his  hands  to  the  amount  of  forty  pounds. 
This  was  holden  to  be  a  verdict  for  the  plaintiff;  for,  notwithstanding  it 
vary  from  the  issue,  the  substantial  part  of  the  issue,  namely,  whether 
the  defendant  had  assets  in  his  hands  sufficient  to  satisfy  the  plaintiff's 
debt,  is  found  for  the  plaintiff. 

2  Roll.  Abr.  702,  pi.  4. 

In  an  action  of  debt  the  plaintiff  declared  upon  a  bond  dated  the  25th 
day  of  November.  The  defendant  pleaded  non  est  factum,  and  issue  was 
joined  upon  the  plea.  The  jury  found  a  bond  dated  the  15th  day  of 
November.  This  was  holden  to  be  a  verdict  for  the  plaintiff,  because  the 
substantial  part  of  the  issue,  namely,  whether  the  bond  be  the  deed  of 
the  defendant,  is  found  for  the  plaintiff. 

Cro.  Ja.  136,  Lane  v.  Pledall,  Mich.  4  J.  1.  ||  This  would  clearly  now  be  held  a 
fatal  variance.  || 

But  it  is  said  in  a  subsequent  case,  that  the  verdict  would  in  such  case 

be  for  the  defendant,  because  the  bond  found  is  not  the  bond  that  is  in 

issue  ;  and  the  case  of  Lane  v.  Pledall,  is  expressly  denied  to  be  law.    It 

is,  however,  in  this  case  laid  down,  that  if  the  jury  in  such  case  find  a 

bond  dated  the  same  day  as  the  bond  upon  which  the  action  is  brought 

is  alleged  to  be  dated,  the  verdict  is  for  the  plaintiff;  notwithstanding 

they  likewise  find  that  the  bond  was  delivered  upon  a  day  different  from 

that  on  which  it  is  dated. (b) 

Salk.  463,  Cromwell  v.  Grunsden,  Pasch.  10  W.  3.  (b)  ||  Because  the  description 
"  dated,"  or  "  bearing  date,"  in  the  declaration,  is  satisfied,  by  showing  a  bond  bearing 
date  on  the  day  alleged,  though  the  delivery  may  be  subsequent ;  but  the  bond  has 
no  operation  till  the  delivery.  Co.  Lit.  46  b ;  4  East,  477 ;  Cowp.  714 ;  Steele  v. 
Mart,  4  Barn.  &  C.  272  ;  Styles  v.  Wardle,  4  Barn.  &  C.  908. || 

The  plaintiff  in  an  action  of  debt  declared  upon  a  bond  entered  into  by 
the  defendant.  The  defendant  pleaded  non  est  factum,  and  issue  was 
joined  upon  the  plea.  The  jury  found  a  bond  entered  into  by  the  defend- 
ant and  J  S.  This  was  holden  to  be  a  verdict  for  the  plaintiff;  for  that, 
as  the  defendant  and  J  S  did  both  seal  and  deliver  the  bond,  it  is  the 
deed  of  each  of  them  ;  and  consequently  each  of  them  is  answerable  for 
the  whole  money  thereupon  due.(c) 

5  Rep.  119,  Whelpdale'a  case.  ||(c)  Unless  ho  plead  in  abatement  that  the  other 
ought  to  be  joined.     1  W.  Saund.  291  d  ;  5  Burr.  2011 ;  1  Barn.  &  A.  29,  224.|| 


VERDICT.  337 

(0)  Of  a  Verdict  which  varies  from  the  Issue. 

In  an  action  of  debt  upon  a  bond,  conditioned  for  the  performance  of 
,  the  covenants  in  an  indenture,  one  of  which  was  that  the  defendant  should 
not  cut  down  trees,  the  breach  assigned  was  cutting  down  twenty  trees. 
The  defendant  pleaded  that  he  did  not  cut  down  twenty  trees,  and  issue 
was  joined  upon  the  plea.    The  jury  found  that  the  defendant  did  not  cut 
down  twenty  trees ;  but  they  found  that  he  cut  down  ten.     This  was 
holden  to  be  a  verdict  for  the  plaintiff:  and  by  the  court, — Although  the 
verdict  vary  from  the  issue,  yet,  as  enough  is  found  to  make  the  defend- 
ant liable  to  the  penalty  of  the  bond,  the  plaintiff  ought  to  have  judgment. 
Dyer,  115,  Anon. ;  1  Inst.  282;  Hob.  53.     ||  The  plea  should  have  negatived  cutting 
anv  trees  ;  hut  in  such  case  the  finding  of  the  jury  cures  the  infm-mality  of  the  issue. 
,  2  W.  Saund.  207,  n.  24,  and  319 ;  3  Bos.  &  Pul/348  ;  and  tit.  Pleas  and  Pleading*, 
(H),  Vol.  vii.  p.  572.|| 

The  defendant  in  an  action  of  debt  pleaded  payment  of  the  money,  for 
which  the  action  was  brought,  at  A.  Issue  being  joined  upon  the  plea, 
the  jury  found  that  the  money  was  paid  at  B.  This  was  holden  to  be  a 
verdict  for  the  defendant ;  for  that,  as  the  payment  of  the  money  is  the 
substantial  part  of  the  issue,  it  is  not  material  where  it  was  paid. 

1  Keb.  662,  Lucas  v.  Harlow;  ||2  W.  Saund.  319.|| 

{In  an  action  on  st.  37  G.  3,  c.  90,  s.  26,  for  penalties  against  two  proc- 
tors for  not  obtaining  and  entering  their  certificates,  one  may  be  found 
guilty,  and  the  other  acquitted ;  for  the  action  is  founded  on  a  tort. 

2  East,  569,  Barnard  v.  Gostling ;  Ibid.  573,  n.,  Hardyman  v.  Whitaker,  S.  P.; 
Carth.  361,  Bastard  v.  Hancock,  S.  P.} 

|3ln  an  action  of  debt  in  the  detinet,  on  the  issue  of  non  solvit  the  jury 
found  a  certain  sum  due  from  the  defendant  to  the  plaintiff,  without  any 
determination  of  the  issue.     Held,  that  the  finding  was  good. 

Thompson  v.  Musscr,  1  Dall.  458. 

In  debt  on  bond,  issues  were  joined  on  the  plea  of  non  est  factum,  sol- 
vit ad  diem,  and  solvit  post  diem  ;  the  verdict  was,  that  "the  defendant  is 
not  indebted  to  the  plaintiff."  Held,  that  the  verdict  was  essentially  de- 
fective, as  it  did  not  appear  that  the  jury  had  agreed  on  any  one  issue. 

Coffin  v.  Jones,  11  Pick.  42. 

In  an  action  of  debt  on  bond,  with  a  condition  to  secure  the  payment 
of  money  only,  the  defendant  pleaded  payment  and  gave  notice  of  set- 
off ;  if  any  part  of  the  debt  has  been  paid,  it  is  proper  for  the  jury  to 
specify  by  their  verdict  the  exact  balance  due  to  the  plaintiff,  though  the 
judgment  must  be  entered  for  the  penalty. 

Richman  v.  Richman,  5  Halst.  114.£/ 

5.  In  an  Action  of  Ejectment. 

The  plaintiff  in  an  action  of  ejectment  declared  upon  a  lease  from  two 
persons.  Issue  being  joined  upon  the  plea  of  not  guilty,  the  jury  found 
that  the  lessors  of  the  plaintiff  were  tenants  in  common.  This  was  holden 
to  be  a  verdict  for  the  defendant:  and  by  the  court, — As  only  one  lease 
is  declared  upon,  and  the  verdict  virtually  finds  two,  the  estates  of  tenants 
in  common  being  several,  the  variance  is  in  a  matter  of  substance.  But 
it  is  said,  that  if  the  jury  had  found  that  the  lessors  of  the  plaintiff  were 
coparceners,  the  verdict  would  have  been  for  the  plaintiff',  because,  as 
two  coparceners  make  only  one  heir,  their  joint  lease  is  as  good  as  the 
joint  lease  of  two  joint-tenants  would  have  been.(a) 

2  Roll.  Ahr.  719,  pi.  25.  ||  (a)  See  1  Esp.  Ca.  330 ;  Adams  on  Ej.  184  ;  1  Wilfl.  1; 
2  Wils.  232;  and  utile,  tit.  Ejectment,  Vol.  iii.|| 

Vol.  X.— 43  2  F 


338  VERDICT. 

(0)  Of  a  Verdict  which  varies  from  the  Issue. 

If  the  plaintiff  in  an  action  of  ejectment  declare  upon  a  lease  for  a 
term  of  years  made  at  a  day  certain,  the  term  demised  by  which  is  to 
commence  immediately,  and  the  jury  find  a  lease  for  the  same  term  made 
at  another  day,  the  verdict  is  for  the  defendant,  the  variance  being  in  a 
matter  of  substance.(a) 

2  Roll.  Abr.  704,  pi.  20.  \\(a)  The  cases  referred  to  under  this  head  are  almost  all 
now  inapplicable,  as  by  the  modern  practice  the  lease,  entry,  and  ouster  are  con- 
fessed ;  it  is  only  necessary  that  the  term  should  be  of  sufficient  length  to  admit  of  the 
lessor's  recovering;  possession  before  it  expires  ;  and  that  the  day  of  the  demise  should 
be  after  the  lessor's  title  accrues.  || 

But  if  the  plaintiff  in  an  action  of  ejectment  declare  upon  a  lease  for  a 
term  of  years  made  the  first  day  of  May,  in  a  certain  year,  the  term  de- 
mised by  which  is  to  commence  at  the  Michaelmas  day  following,  and  the 
jury  find  a  lease  for  the  same  term  made  the  first  day  of  June  in  the 
same  year,  the  term  demised  by  which  is  to  commence  at  the  Michaelmas 
day  following,  the  verdict  is  for  the  plaintiff;  for  it  is  not  material  upon 
what  day  the  lease  was  in  such  case  made,  provided  it  was  made  before 
the  day  on  which  the  term  was  to  commence. 
2  Roll.  Abr.  704,  pi.  119. 

If  the  plaintiff  in  an  action  of  ejectment  declare  upon  a  lease  of  twenty 
acres,  and  the  defendant  who  has  pleaded  not  guilty,  be  found  guilty  as 
to  ten  acres,  the  verdict  is  good ;  but  it  is  in  this  case  said,  that  if  the 
defendant  had  pleadad  non  dimisit,  and  the  defendant  had  been  found 
guilty  as  to  ten  acres,  the  verdict  would  have  been  bad. 
Dalis.  105. 

And  it  is  in  a  subsequent  case  laid  down,  that  the  plaintiff  would  in 
such  case  be  entitled  to  judgment  as  to  ten  acres,  notwithstanding  the 
defendant  had  pleaded  non  dimisit. 

2  Roll.  Abr.  703,  Brown  v.  Meredith,  Pasch.  43  Eliz. 

But  in  a  still  later  case  it  is  laid  down,  that  the  plaintiff  would  not  in 
such  case  be  entitled  to  judgment ;  for  that,  as  the  lease  found  is  not 
that  on  which  issue  is  joined,  the  variance  is  in  a  matter  of  substance. 
2  Roll.  Abr.  720,  Brown  v.  Ellis,  Pasch.  3  Jac.  1. 

If  the  plaintiff  in  an  action  of  ejectment  declare  upon  a  lease  of  a  house, 
and  the  jury  find  that  only  part  of  the  house  is  built  upon  the  land  of 
the  plaintiff,  he  shall  have  judgment  for  that  part. 
Roll.  Abr.  704,  pi.  22 ;  Jenk.  268,  pi.  83. 

The  plaintiff  in  an  action  of  ejectment  declared  upon  a  lease  of  a  hun- 
dred acres  of  land.  The  jury  found  the  defendant  guilty  as  to  forty  acres, 
and  as  to  the  residue  not  guilty.     The  verdict  was  holden  to  be  good. 

Cro.  Eliz.  13,  Guy  v.  Rand. 

The  plaintiff  in  an  action  of  ejectment  declared  upon  a  lease  of  a  fourth 
part  of  a  fifth  part  of  a  field.  The  jury  found  the  defendant  guilty  as  to 
a  third  part  of  a  fourth  part  of  a  fifth  part.  The  verdict  was  holden  to 
be  good :  and  by  the  court, — The  jury  may  always  find  the  defendant  in 
an  action  of  ejectment  guilty  as  to  so  much  as  the  plaintiff  proves  a  title 
unto :  but  the  reporter  subjoins  a  query,  In  what  manner  the  writ  of  pos- 
session is  in  such  case  to  be  executed  ? 

1  Sid.  229,  Ablett  v.  Skinner. 

The  plaintiff  in  an  action  of  ejectment  declared  upon  a  lease  of  a  moiety 


VERDICT.  339 

(0)  Of  a  Verdict  which  varies  from  the  Issue. 

of  certain  premises.     The  jury  found  the  defendant  guilty  as  to  a  third 

part  of  the  premises.     In  order  to  arrest  the  judgment,  it  was  said  that 

the  verdict  is  bad,  because  it  does  not  find  the  defendant  guilty  as  to  all 

that  the  plaintiff  has  declared  for.     The  rule  for  arresting  the  judgment 

was  discharged:  and  by  Lord  Mansfield,  C.  J., — There  seems  to  be  no 

good  reason  why  the  plaintiff  in  an  action  of  ejectment  should  not  recover 

that  part  of  what  he  has  declared  for,  to  which  he  proves  a  title :  and  it 

is  laid  down  in  1  Sid.  229,  that  he  may  recover  such  part. 

MS.  Kep.  Burgess  v.  Burgess,  East.  30  G.  2,  in  B.  B. ;  [1  Burr.  326,  S.  C. ;] 
1|  1  Espin.  Ca.  330.  || 

If  an  action  of  ejectment  be  brought  against  a  husband  and  his  wife, 
and  only  one  of  them  be  found  guilty,  the  verdict  is  good. 
Latch,  61,  Hems  v.  Stroud. 

6.  In  an  Action  of  Replevin. 

The  defendant  in  an  action  of  replevin  alleged,  that  the  plaintiff  held 
land  of  him  by  fealty,  suit  of  court,  and  the  yearly  rent  of  three  shillings 
and  four  pence ;  and  he  avowed  the  taking  for  rent  in  arrear.  The  plain- 
tiff traversed  the  holding  alleged  by  the  defendant,  and  issue  was  joined 
upon  the  traverse.  The  jury  found  that  the  plaintiff  held  of  the  defendant 
by  fealty,  and  the  yearly  rent  of  three  shillings  and  four  pence ;  but  that 
he  did  not  hold  by  suit  of  court.  This  was  holden  to  be  a  verdict  for  the 
plaintiff,  because  the  whole  of  the  title  to  distrain  alleged  by  the  avowant, 
every  part  of  which  is  material  in  an  action  of  replevin,  is  not  found. 

Cro.  Eliz.  790 ;  Lewes  v.  Bucknall,  Yelv.  148. 

In  an  action  of  replevin,  the  defendant,  a  commoner,  avowed  the  taking 
of  cattle  damage-feasant  upon  the  eleventh  day  of  April  in  a  certain  year. 
The  plaintiff  pleaded,  that  Williams,  another  commoner,  had,  upon  the 
thirtieth  day  of  March  in  the  same  year,  demised  his  right  of  common  to 
the  plaintiff,  to  be  holden  by  him  from  the  twenty-fifth  day  of  the  said 
March,  for  one  year.  The  defendant  traversed  the  demise,  and  issue  was 
joined  upon  the  traverse.  The  jury  found  a  demise  from  Williams  to  the 
plaintiff,  made  the  twenty-fifth  day  of  March  in  the  same  year,  by  which 
Williams  had  demised  his  right  of  common  to  the  plaintiff  for  one  year 
from  thence  next  ensuing.  In  order  to  arrest  the  judgment,  it  was  insisted, 
that  the  demise  found  is  different  from  that  which  is  in  issue :  but  judg- 
ment was  given  for  the  plaintiff.  And  by  the  court, — The  substantial 
part  of  the  issue,  namely,  whether  the  plaintiff  had  at  the  time  of  taking 
his  cattle  a  right  of  common  under  a  demise  from  Williams,  is  found  for 
him  ;  and  the  day  of  making  the  demise  is  not  material.  The  report  adds, 
that,  if  the  jury  had  found  any  other  right  of  common  in  the  plaintiff 
than  under  a  demise  from  Williams,  the  verdict  would  have  been  bad. 

Hob.  72,  Pope  v.  Skinner.  ||  The  reporter  observes,  that  the  jury  might  have  found 
a  general  verdict  against  the  plaintiff  on  non  dimisit,  cfr.,  and  could  not  safely  have 
found  for  him  generally;  and  see  Forty  v.  Imber,  6  East,  B.  434;  1  Saund.  285  b  ; 
2Saund.  312,  319.  || 

The  defendant  in  an  action  of  replevin  avowed  the  taking  of  cattle 
damage-feasant.  In  bar  of  this  avowry  the  plaintiff  prescribed  for  a  right 
of  common.  Issue  being  joined  upon  the  prescription,  the  jury  found,  that 
the  plaintiff  had  a  right  of  common ;  but  they  likewise  found,  that  he  ought 
to  pay  yearly  for  the  same  a  hen  and  five  eggs.     This  was  holden  to  be  a 


340  VERDICT. 

(0)  Of  a  Verdict  which  varies  from  the  Issue. 

verdict  for  the  plaintiff;  for  that,  as  the  payment  is  not  parcel  of  the  pre- 
scription, but  a  collateral  recompense,  for  which  the  person  to  whom  it  is 
due  has  a  remedy,  it  was  not  necessary  for  the  plaintiff  to  set  out,  that 
he  was  liable  to  the  payment,  his  title  to  the  right  of  common  being  com- 
plete without  setting  this  out :  but  it  is  added,  that  if  the  jury  had  found, 
that  the  plaintiff  had  a  right  of  common  upon  paying  a  hen  and  five  eggs, 
the  verdict  would  have  been  for  the  defendant ;  because,  as  the  payment 
would  then  have  been  parcel  of  the  prescription,  the  plaintiff  would  not, 
in  case  he  had  omitted  to  set  this  out,  have  shown  a  complete  title  to  the 
right  of  common. 
5  Hep.  78,  Gray's  case.    ||  As  to  pleading  prescriptions,  see  1  W.  Saund.  268. || 

||  Where  to  an  avowry  for  120/.  rent  in  arrear,  the  plaintiff  pleaded 
that  the  said  120/.  is  not  due,  and  the  defendant  took  issue  on  the  plea, 
and  at  the  trial  it  appeared  that  only  24/.  rent  was  due,  and  the  plaintiff 
argued  that  the  evidence  did  not  support  the  issue,  and  a  verdict  was 
taken  for  the  24/.,  subject  to  the  opinion  of  the  court,  it  was  held  that 
this  finding  cured  the  informality  of  the  issue,  which  ought  to  have  con- 
tained the  words  "or  any  part  thereof." 

Cobb  v.  Bryan,  3  Bos.  &  Pul.  348  ;  and  see  2  W.  Saund.  319. 

Where  an  avowry  stated  that  the  defendant  held  the  premises  at  a  cer- 
tain yearly  rent,  to  wit,  the  yearly  rent  of  72/.,  and  the  plaintiff  pleaded, 
1st,  710)1  tenait,  2d,  ricns  in  arrear,  and  the  first  plea  was  found  for  the 
plaintiff;  it  was  held  that  the  second  plea  became  thereby  immaterial, 
and  that  the  proper  course  was  to  discharge  the  jury  from  finding  any 
verdict  upon  it,  but  that  if  any  verdict  was  entered  upon  it,  it  must  be 
entered  for  the  plaintiff. 

Cossey  v.  Diggons,  2  Barn.  &  A.  546.  || 

j3  A  verdict  in  replevin  that  the  property  is  not  in  the  defendant,  or  not 
in  those  in  whom,  by  tho  inducement  in  the  plea,  it  has  been  stated  to  be, 
is  insufficient. 

Chambers  v.  Hunt,  3  Harr.  (N.  J.)  339.£/ 

7.  In  an  Action  of  Trespass. 

In  an  action  of  trespass  the  plaintiff  declared,  for  the  threshing  and 
carrying  away  of  twenty  bushels  of  barley.  The  defendant  having 
pleaded  not  guilty,  the  jury  found  him  guilty  of  carrying  away  the  barley, 
but  not  of  threshing  it.  This  was  holden  to  be  a  verdict  for  the  plain- 
tiff. And  by  the  court, — Torts  are  several,  and  the  carrying  away  of 
the  barley  was  a  tort,  for  which  the  plaintiff  is  entitled  to  recover  damages. 

2  Roll.  Abr.  703,  pi.  15. 

In  an  action  of  trespass  the  plaintiff  declared  for  breaking  and  entering 

his  close.     The  defendant  having  pleaded  not  guilty,  the  jury  found,  that 

the  trespass  was  committed  in  the  close,  and  that  one  acre  of  the  close 

was  in  possession  of  the  plaintiff:  but  they  likewise  found,  that  a  larger 

part  of  the  close  was  in  the  possession  of  tho  defendant,  and  that  a  still 

larger  part  thereof  was  in  the  possession  of  J  S.     This  was  holden  to  be 

a  verdict  for  the  plaintiff.     And  by  the  court, — As  it  is  found,  that  the 

trespass  was  committed  in  the  close,  and  that  part  of  the  close  was  in 

the  possession  of  the  plaintiff,  he  is  entitled  to  recover  damages. 

Cro.  Eliz.  170  ;  Dod  v.  Coke  ;  2  Roll.  Abr.  703,  pi.  10.  II  See  Richards  v.  Peake, 
2  Bam.  &  C.  918.11 


VERDICT.  341 

(0)  Of  a  Verdict  which  varies  from  the  Issue. 

In  an  action  of  trespass,  the  plaintiff  declared  for  breaking  Ins  close, 
and  for  eating  his  grass  with  divers  cattle,  to  wit,(a)  with  horses,  oxen, 
and  cows.  The  defendant  having  pleaded  not  guilty,  the  jury  found  him 
guilty  of  breaking  the  close  and  eating  the  grass  with  divers  beasts ;  and 
judgment  was  given  for  the  plaintiff.  A  writ  of  error  being  brought,  it 
was  assigned  for  error,  that  it  is  not  found,  that  the  grass  was  eaten  by 
the  beasts  of  any  of  the  kinds  mentioned  in  the  declaration.  The  judg- 
ment was  affirmed.  And  by  the  court, — The  substantial  part  of  the  issue, 
namely,  whether  the  grass  of  the  plaintiff  was  eaten  by  divers  cattle  of 
the  defendant,  is  found ;  and  it  is  not  material  of  what  kind  the  beasts 

were. 

Cro.  Ja.  662,  Elston  v.  Durrant,  ||(a)  As  to  the  effect  of  a  videlicet  in  preventing 
an  immaterial  averment  from  becoming  material,  see  1  W.  Saund.  170,  n. ;  2  "VV. 
Saund.  291  b ;  and  tit.  Pleas  and  Pleadings,  (B),  Vol.  vii.  p.  503.(1 

In  an  action  of  trespass  against  J  S  and  J  N,  the  plaintiff  declared  for 
taking  his  gun.  The  defendant  J  S  pleaded,  that  the  plaintiff  made  an 
assault  upon  A  B  with  the  gun,  and  that  thereupon  he,  in  order  to  keep 
the  peace  and  preserve  the  life  of  A  B,  took  the  gun.  The  defendant  J  N 
pleaded  not  guilty.  Issues  being  joined  upon  both  pleas,  the  jury  found 
the  issue  upon  the  first  plea  for  J  S,  but  they  found  J  N  guilty.  In  order 
to  arrest  the  judgment  against  J  N,  it  was  insisted,  that,  as  the  first  issue  is 
found  for  J  S,  there  ought  not  to  be  judgment  against  J  N.  Judgment 
was  given  against  him.  And  by  the  court, — As  J  N  is  found  guilty,  the 
court,  rather  than  suffer  him  to  avail  himself  of  the  plea  of  justification 
found  for  J  S,  will  intend  that  the  taking  of  the  gun  by  J  N  was  at  another 
time.  But  it  is  said,  that  if  J  S  had  pleaded  a  gift  of  the  gun  by  the  plain- 
tiff, and  J  N  had  pleaded  not  guilty,  and  the  issue  upon  the  plea  of  J  S  had 
been  found  for  him,  there  could  not  have  been  judgment  against  J  N,  not- 
withstanding the  issue  upon  the  plea  of  not  guilty  has  been  found  against 
him ;  because  it  would  then  have  appeared  to  the  court,  from  the  finding 
of  the  issue  upon  the  plea  of  J  S,  that  the  plaintiff  had  no  cause  of  action. 

Cro.  Ja.  134,  Marler  v.  Ailiff  and  another.     ||  See  2  Mod.  68.  || 

j3  On  a  collateral  issue,  whether  the  injury  complained  of  were  the 
same  with  the  one  which  was  the  foundation  of  an  action  against  a  joint 
trespasser,  in  which  there  had  been  a  satisfaction,  the  jury  found  that 
the  case  was  precisely  the  same  ;  but  three  of  the  jurors  added,  that  they 
"did  not  think  the  defendant  should  be  cleared  of  the  guilt."  Held, 
that  the  issue  was  substantially  found. 

Duane  v.  Simmons,  4  Yeates,  441. si 

8.  In  divers  other  Actions. 

In  an  action  of  account,  the  defendant  pleaded,  that  he  had  accounted 
before  J  S  and  J  N,  auditors  assigned  by  the  plaintiff.  Issue  being 
joined  upon  the  plea,  the  jury  found  that  the  defendant  had  accounted 
before  J  S  only.  This  was  holden  to  be  a  verdict  for  the  defendant. 
And  by  the  court, — The  substantial  part  of  the  issue,  namely,  whether 
he  had  accounted  to  an  auditor  assigned  by  the  plaintiff,  is  found  for  him. 

Bro.  Vcrd.  pi.  99. 

In  an  assize  of  darrein  presentment  the  demandant  alleged,  that  the 
avoidance  of  the  church  was  by  deprivation  of  the  last  incumbent.  Issue 
being  joined  upon  the  allegation,  the  jury  found,  that  the  avoidance  of  the 

2p2 


342  VERDICT. 

(0)  Of  a  Verdict  -which  varies  from  the  Issue. 

church  was  by  the  death  of  the  last  incumbent.  This  was  holclen  to  be  a 
verdict  for  the  demandant.  And  by  the  court, — The  avoidance  of  the 
church  is  the  substantial  part  of  the  issue,  the  manner  of  avoiding  being 
only  a  circumstance. 
1  Inst.  282. 

In  a  writ  of  second  deliverance,  the  plaintiff  made  title  under  a  deed 
of  feoffment  to  A  and  B  to  his  use.  The  defendant  traversed,  that  the 
deed  of  feoffment  was  to  the  use  of  the  plaintiff,  and  issue  was  joined  upon 
the  traverse.  The  jury  found  a  deed  of  feoffment  to  A,  B,  and  C,  to  the 
use  of  the  plaintiff.  This  was  holden  to  be  a  verdict  for  the  plaintiff. 
And  by  the  court, — The  substantial  part  of  the  issue  is,  whether  a  deed 
of  feoffment  was  made  to  the  use  of  the  plaintiff;  which  being  found,  it 
is  not  material  whether  the  number  of  the  feoffees  was  two  or  three. 

Noy,  93,  Dicker  v.  Mollard. 

In  a  suit  upon  a  writ  of  prohibition,  the  plaintiff  alleged  a  modus. 

The  defendant  pleaded,  that  there  is  not  such  a  modus  as  the  plaintiff 

has  alleged.     Issue  being  joined  upon  the  plea,  the  jury  found  a  modus 

different  from  that  alleged  by  the  plaintiff,  and  a  consultation  was  prayed. 

It  was  holden,  that  a  consultation  ought  not  to  be  awarded.     And  by 

the  court, — As  the  jury  have  found,  that  there  is  a  modus,  the  defendant 

ought  not  to  be  suffered  to  sue  in  the  spiritual  court  for  tithes  in  kind. 

lVentr.  32,  Anon.;  [1  Term  R.  427,  Brock  v.  Richardson,  S.  P. ;]  || Gwill.  Tith. 
Ca.  1303;  Eag.  &  Young,  353;  and  ante,  tit.  Tythes.\\ 

9.  In  a  criminal  Prosecution. 

In  an  indictment  for  murder,  the  jury,  provided  they  are  satisfied  the 
killing  was  not  of  malice  aforethought,  may  find  the  prisoner  guilty  of 
manslaughter ;  for  the  killing  is  the  substantial  part  of  the  issue. 

It  is  said  to  be  usual  to  prefer  two  indictments  against  a  person  guilty 
of  homicide  by  stabbing,  one  upon  the  statute  against  stabbing,  and  an-  ! 
other  for  murder,  that,  in  case  the  evidence  be  not  sufficient  to  convict 
the  prisoner  of  murder  upon  the  former  indictment,  he  may  be  convicted 
of  manslaughter  upon  the  latter. 

Fust.  299. 

But  it  is  in  other  books  laid  down,  that  the  person  indicted  upon  the 
statute  against  stabbing  may,  upon  this  indictment,  be  found  guilty  of 
manslaughter ;  for  that  the  killing  is  the  substantial  part  of  the  issue. 

II.  P.  C.  58 ;  1  Jo.  433  ;  Kel.  132. 

^  It  was  charged  in  an  indictment  for  murder,  that  Mackally,  the  prisoner, 
did  feloniously  wound  Richard  Fell,  and  that  he  died  of  the  wound.  The 
jury  found,  that  Mackally  did  give  a  wound  to  Richard  Fell,  together  with 
the  circumstances  which  attended  the  giving  of  it,  and  that  he  died  of  the 
wound;  and  they  concluded  their  verdict  in  these  words:  "If  upon  the 
whole  matter  the  court  shall  be  of  opinion  that  the  killing  was  murder,  then 
we  find  Mackally  guilty  of  murder  in  the  manner  it  is  charged  in  the  indict- 
ment." An  exception  was  taken,  that,  as  the  jury  had  not  found  that 
Mackally  did  feloniously  wound  Richard  Fell,  the  court  could  not  adjudge 
that  the  wounding  was  felonious.  The  exception  was  not  allowed.  And 
by  the  court, — The  jury  may  in  any  case  find  the  fact  with  its  circumstances, 
and  submit  the  law  arising  thereupon  to  the  consideration  of  the  court. 
In  the  present  case  the  jury  have  moreover  virtually  found,  that  the  wound- 


VERDICT.  343 

(P)  Of  the  Words  Modo  et  Forma  in  a  Verdict. 

ing  was  felonious  ;  for  they  say,  that,  if  upon  the  whole  matter  the  court 
shall  be  of  opinion  that  the  killing  was  murder,  then  we  find  Machally 
guilty  of  murder  in  the  manner  it  is  charged  in  the  indictment.  The 
consequence  is,  that  as  the  court  have  adjudged  the  killing  to  be  murder, 
the  jury  have  found  Mackally  guilty  of  murder  in  the  manner  it  is  charged 
in  the  indictment ;  and  it  is  therein  charged  that  the  wounding  was  fe- 
lonious. 
9  Rep.  63,  69,  Mackally's  case. 

In  an  information  against  J  S  and  J  N,  the  engrossing  of  a  thousand 
quarters  of  corn  was  charged.  The  defendants  having  both  pleaded  not 
guilty,  the  jury  found  that  J  S  had  engrossed  seven  hundred  quarters  of 
corn.  The  other  defendant  J  N  was  found  not  guilty.  It  was  holden, 
that  judgment  should  be  given  against  J  S,  because  the  information  is 
for  a  tort,  and  torts  are  several. 
2  Roll.  Abr.  707,  pi.  48. 

(P)  Of  a  Verdict  -where  the  "Words  Modo  et  Forma  are  contained  in  the  Traverse  upon 

which  Issue  is  joined. 

If  issue  be  joined  upon  a  traverse  in  which  the  words  modo  et  forma 
are  contained,  some  circumstances,  that  would  not  otherwise  be  so,  are 
by  these  words  made  material,  and  must  be  found  by  the  verdict. 

2  Roll.  Abr.  708,  pi.  58.    ||  See  Vin.  Abr.  tit.  Modo  et  Forma.\\ 

If  a  feoffment  by  deed  be  traversed,  and  the  words  modo  ct  forma  be 
contained  in  the  traverse,  and  the  jury  find  a  feoffment  without  deed,  the 
verdict  is  bad ;  the  words  modo  et  forma  being  in  this  case  essential  to 
the  issue. 

1  Inst.  281. 

In  an  action  of  debt  the  plaintiff  declared,  that  the  defendant  was  in- 
debted to  him  in  the  sum  of  forty  shillings  for  a  horse  sold.  The  defend- 
ant pleaded  nil  debet  modo  et  forma,  and  issue  was  joined  upon  the  plea. 
The  jury  found,  that  the  defendant  was  indebted  to  the  plaintiff  in  the 
sum  of  forty  shillings  for  two  horses  sold.  The  verdict  was  holden  to 
be  bad ;  because  the  contract  found  is  different  from  that  upon  which 
issue  is  joined. 

2  Roll.  Abr.  702,  pi.  2.  ||  But  the  count  now  would  only  express  horses,  &c,  goods, 
wares  and  merchandises,  sold,  &c,  and  the  only  reason  why  the  plaintiff  is  bound  to 
show  wherein  the  defendant  is  indebted  is,  that  it  may  appear  that  it  is  not  on  a 
record  or  specialty,  but  on  a  simple  contract.     2  Will.  Saund.  350.  || 

In  an  action  of  replevin  the  defendant  avowed  the  taking  as  a  distress 
for  rent  in  arrear,  and  made  title  in  himself  to  distrain,  by  virtue  of  an 
absolute  devise  from  J  S  to  him  of  the  place  in  which  the  distress  was 
taken.  The  plaintiff  pleaded,  that  J  S  did  not  devise  to  the  defendant 
modo  et  forma  as  he  has  alleged,  and  issue  was  joined  upon  the  plea.  The 
jury  found  a  devise  from  J  S  to  the  defendant  upon  a  condition  prece- 
dent ;  and  they  also  found,  that  the  condition  was  performed  at  the  time 
the  devise  was  pleaded.  The  verdict  was  holden  to  be  for  the  plaintiff. 
And  by  the  court, — As  the  devise  to  the  defendant  is  conditional,  and 
not  absolute,  it  is  not  such  a  devise  as  he  has  alleged. 

2  Roll.  Abr.' 709,  pi.  61. 

A  devise  by  J  S,  of  certain  premises  to  J  N,  in  fee  having  been  pleaded, 
the  plaintiff  replied,  that  J  S  did  not  devise  modo  et  forma  as  the  defendant 
has  alleged.    Issue  being  joined  upon  the  replication,  the  jury  found  that 


344  VERDICT. 

(P)  Of  the  Words  Modo  et  Forma  in  a  Verdict. 

J  S  devised  the  premises  to  A,  for  a  term  of  years,  with  remainder  to  J  N, 
in  fee,  and  that  the  term  was  subsisting.  It  was  holden,  that,  as  the  devise 
found  is  substantially  different  from  that  on  which  the  issue  is  joined,  the 
one  being  a  devise  of  an  estate  in  possession,  the  other  a  devise  of  an 
estate  in  remainder,  it  is  not  such  a  devise  as  the  defendant  has  alleged. 
1  Jon.  22-4,  Rex  v.  Nudigate. 

Upon  considering  the  cases  already  cited,  it  will  appear,  that  the  cir- 
cumstances traversed  by  traversers  in  which  the  words  modo  et  forma 
were  contained  were  holden  to  be  material,  because  they  were  essential 
to  the  issues :  from  whence  it  may  be  fairly  inferred,  that  the  verdict 
was  not  in  any  one  of  the  cases  holden  to  be  bad,  merely  because  the 
words  modo  et  forma  were  contained  in  the  traverse  upon  which  it  was 
joined,  but  because  the  jury  had  not  found  a  circumstance,  which  was 
essential  to  the  issue. 

It  will  appear  from  some  other  cases  which  shall  be  mentioned,  that, 
although  the  words  modo  et  forma  are  contained  in  the  traverse  upon 
which  issue  is  joined,  the  materiality  of  what  is  traversed  very  seldom 
depends  upon  these  words. 

It  is  in  one  book  laid  down  generally,  that  although  the  words  modo  et 
forma  are  contained  in  the  traverse  upon  which  issue  is  joined,  it  is  not- 
necessary  that  the  verdict  should  find  every  circumstance  which  is  tra- 
versed ;  for  that,  if  all  the  material  circumstances  of  the  issue  are  found, 
it  is  not  necessary  that  any  immaterial  circumstance  should  be  found. 

1  Inst.  281.  ||  And  these  words,  though  usual,  are  not  essential  in  a  traverse  ;  a  id 
the  omission  of  them  is  not  cause  of  demurrer.    Com.  Dig.  Pleader,  (G)  l.|| 

If  a  man  bring  a  writ  of  entry  in  casu  proviso  upon  the  alienation  of  te- 
nant in  dower  to  his  disherison,  and  allege  an  alienation  in  fee ;  and  the 
tenant  plead,  that  she  did  not  alienate  modo  et  forma,  and  issue  be  joined 
upon  the  plea,  and  it  be  found  by  the  jury  that  the  tenant  did  alienate  in 
tail  or  for  life,  the  demandant  shall  recover,  notwithstanding  the  alienation 
was  not  such  an  alienation  as  is  alleged ;  because,  as  the  substantial  part 
of  the  issue,  namely,  whether  the  tenant  did  alienate  to  the  disherison  of 
the  demandant,  is  found,  the  manner  of  alienating  is  not  material. 

1  Inst.  281. 

In  an  action  of  trespass,  the  plaintiff  declared  for  the  taking  of  his  goods 
upon  a  day  certain,  and  at  a  place  certain.  The  defendant  pleaded  not 
guilty,  modo  et  forma  as  the  plaintiff  has  alleged,  and  issue  was  joined  upon 
the  plea.  The  jury  found  the  defendant  guilty  upon  another  day,  and  at 
another  place.  The  verdict  was  holden  to  be  good ;  because  the  substan- 
tial part  of  the  issue,  namely,  whether  the  goods  were  taken,  is  found,  and 
neither  the  day  when,  nor  the  place  where,  they  were  taken  is  material, 
1  Inst.  282.    ||  See  1  Chitty  on  Plead.  257  ;  Stephen  on  Plead.  312.|| 

||  Where  the  plaintiff'  declared  for  an  assault  and  battery,  and  tearing 
his  clothes,  and  the  defendant  pleaded  that  he  was  not  guilty  of  the  said 
supposed  assaults  in  manner  and  form  as  the  plaintiff  had  complained; 
it  was  held  that  by  the  modo  et  forma  the  battery  and  laceravit  were  de- 
nied as  well  as  the  assault. 
Weathrell  v.  Howard,  3  Bing.  135.  || 

In  an  action  of  trespass  quare  clatisumf regit,  the  defendant  justified  un- 
der a  right  of  common  in  the  loeus  in  quo,  from  the  day  of  Pentecost  in  every 
year  to  a  day  certain  in  the  same  year.    The  plaintiff'  traversed  that  the 


VERDICT.  345 

(P)  Of  the  words  Modo  ct  Forma  in  a  Verdict. 

defendant  had  a  right  of  common  modo  et  forma  as  he  had  alleged,  and 
issue  was  joined  upon  the  traverse.  The  jury  found,  that  the  defendant 
had  a  right  of  common  upon  the  day  of  Pentecost  in  every  year,  and 
from  the  day  next  thereunto,  until  the  day  certain  in  the  same  year  men- 
tioned in  his  plea.  This  was  holden  to  be  a  verdict  for  the  defendant ; 
because  the  substantial  part  of  the  issue,  namely,  whether  he  had  a  right 
of  common  at  the  time  the  trespass  is  charged,  is  found ;  and  it  is  not 
necessary  that  the  title  of  the  defendant  to  the  right  of  common  should 
in  such  case  be  found  precisely  as  it  is  set  out.  But  it  was  in  this  case 
agreed,  that  if  a  man  bring  an  assize  of  right  of  common,  it  is  necessary 
to  set  out  a  title  thereto,  and  that  this  must  be  found  precisely  as  it  is 
set  out ;  for  that  the  demandant  is  not  in  such  case  entitled  to  recover, 
unless  it  be  found  by  the  jury  that  he  has  the  very  title  to  the  right  of 
common  which  is  set  out. 
Moor,  864,  Thorowgood  v.  Johnson ;  2  Roll.  Abr.  708,  pi.  55,  S.  C. 

In  an  action  of  trespass,  the  plaintiff  declared  for  breaking  Ms  house 
and  taking  his  goods.  The  defendant  pleaded,  that  the  house  is  holden 
of  him,  as  of  his  manor  of  A,  by  homage,  fealty,  escuage,  suit  of  court, 
and  the  yearly  rent  of  one  pound  of  cummin  seed,  and  that  he  entered 
the  house  and  distrained  the  goods  for  three  years'  rent  in  arrear.  The 
plaintiff  replied,  that  the  house  is  holden  of  J  S  as  of  his  manor  of  B, 
absque  hoc  that  it  is  holden  of  the  defendant  modo  et  forma  as  he  has 
alleged.  Issue  being  joined  upon  the  replication,  the  jury  found,  that  the 
house  is  holden  of  the  defendant,  as  of  his  manor  of  A,  by  homage,  fealty, 
and  the  yearly  rent  of  one  pound  of  cummin  seed,  and  not  otherwise. 
This  was  holden  to  be  a  verdict  for  the  defendant :  and  by  the  court, — 
Notwithstanding  the  verdict  does  not  find  the  holding  to  be  precisely  as 
the  defendant  has  alleged,  it  finds  the  substantial  part  of  the  issue,  that 
the  house  is  holden  of  the  defendant ;  which,  although  it  would  not  have 
been  sufficient  finding  in  an  action  of  replevin,  is  so  in  the  present  action, 
wherein  the  defendant  is  charged  as  a  wrong-doer. 

Yelv.  148,  Goodman  v.  Ayling. 

The  declaration  in  an  action  upon  the  case  charged  the  speaking  of  the 
following  words, —  There  is  a  great  nest  of  thieves  at  Pirton,  and  Sir  John 
Brugis  is  the  maintainer  of  them,  and  he  is  a  strong  thief  himself.  The 
defendant  traversed  the  speaking  of  the  words  modo  et  forma  as  the  plain- 
tiff has  alleged.  Issue  being  joined  upon  the  traverse,  the  jury  found  that 
the  defendant  spoke  all  the  words  charged,  except  the  word  strong,  and 
assessed  damages  for  the  plaintiff.  Upon  a  motion  in  arrest  of  judgment, 
it  was  insisted,  that,  as  all  the  words  charged  are  not  found  to  have  been 
spoken  by  the  defendant,  the  plaintiff  ought  not  to  have  judgment :  but 
judgment  was  after  deliberation  given  for  the  plaintiff. 

Dyer,  75,  Brugis  v.  Warneford.     ||  See  1  Will.  Saund.  242  a,|| 

In  an  action  upon  the  case,  the  plaintiff  charged  the  speaking  of  the 
following  words, — If  Sir  John  Sidenham  might  have  his  way  he  would 
kill  the  king.  The  defendant  traversed  the  speaking  of  the  words  modo 
et  forma  as  the  plaintiff  has  alleged.  Issue  being  joined  upon  the  traverse, 
the  jury  found,  that  the  defendant  spoke  the  following  words, — I  think 
in  my  conscience  if  Sir  John  Sidenham  might  have  his  way  he  would 
kill  the  king.  Haughton,  J.,  was  of  opinion,  that  as  the  jury  have  found 
other  words  as  well  as  those  charged,  the  verdict  is  for  the  defendant :  but 
Montagu,  C.  J.,  Croke,  J.,  and  JDodderidge,  J.,  were  of  opinion,  that  as 

Vol.  X.— 44 


346  VERDICT. 

(Q)  Of  a  Verdict  not  finding  the  Matter  in  Issue  with  Certainty. 

the  words  charged  are  all  found,  and  the  other  words  found  do  not  alter 
the  sense  or  take  off  the  force  of  the  words  charged,  the  verdict  is  for 
the  plaintiff;  and  judgment  was  given  for  him.  A  writ  of  error  being 
brought  in  the  Exchequer-chamber,  Hobart,  C.  J.,  of  the  Common  Pleas, 
Wynch,  and  Denham,  were  of  opinion  that,  as  the  manner  and  form  of 
speaking  the  words  is  traversed,  and  they  are  not  found  to  have  been 
spoken  precisely  as  they  are  charged,  the  verdict  is  for  the  defendant : 
but  Tanfield,  C.  B.,  Warburton,  Bromley,  and  Hutton  being  of  a  different 
opinion,  the  judgment  of  the  Court  of  King's  Bench  was  affirmed. 
Cro.  Ja.  407,  Sidenham  v.  Man. 

(Q)  Of  a  Verdict  which  does  not  find  the  Matter  in  Issue  -with  Certainty. 

In  an  action  of  ejectment  for  a  messuage,  the  jury  found  the  defendant 
guilty  as  to  so  much  of  the  messuage  as  stands  upon  a  certain  bank.  The 
verdict  was  holden  to  be  bad,  because  it  is  uncertain  :  and  by  the  court, 
— Although  a  verdict  which  finds  the  defendant  guilty  as  to  part  of  what 
is  demanded  in  ejectment  may  be  good,  it  can  only  be  so  where  the  de- 
fendant is  found  guilty  as  to  a  certain  part ;  because,  if  the  verdict  do 
not  find  something  in  certainty,  the  court  cannot  give  judgment ;  for 
the  maxim  is,  oportet  quod  res  certa  deducatur  in  judicium. 

Mar.  97,  Juxon  v.  Andrews.    {See  2  Day,  68,  Kinney  v.  Williams.} 

In  an  action  of  dower  the  tenant  pleaded  that  the  husband  of  the  de- 
mandant was  never  seised  of  the  premises  of  which  she  demanded  dower. 
Issue  being  joined  upon  the  plea,  the  jury  found  that  the  husband  was 
seised  of  the  premises,  except  so  much  thereof  as  belonged  to  J  S.  The 
verdict  was  holden  to  be  bad  ;  because,  as  it  does  not  appear  what  part 
of  the  premises  did  belong  to  J  S,  the  court  cannot  tell  of  how  much  to 
give  judgment. 

2  Roll.  Abr.  694,  (U),  pi.  2. 

In  an  assize  the  demand  was  of  an  arrear  of  a  rent-charge  of  twenty 
pounds  devised  to  the  demandant.  The  jury  found  that  the  rent-charge 
was  in  arrear  for  the  term  of  thirty  years ;  but  they  did  not  find  when 
the  devisor  died.  The  verdict  was  upon  a  writ  of  error  holden  to  be  bad  ; 
because,  as  the  time  of  the  devisor's  death  is  not  found,  it  does  not  ap- 
pear at  what  time  the  thirty  years  ended,  for  which  the  rent-charge  is 
found  to  be  in  arrear. 

Cro.  Car.  521,  Morris  v.  Prince. 

In  an  action  of  debt  the  plaintiff  declared  for  divers  sums  of  money, 
amounting  in  the  whole  to  forty  pounds.  Issue  being  joined  upon  the 
plea  of  nil  debet,  the  jury  found  that  the  defendant  was  indebted  to  the 
plaintiff  in  the  sum  of  thirty  pounds,  but  that  the  residue  of  the  forty 
pounds  was  not  due  to  the  plaintiff.  Judgment  being  given  for  the 
plaintiff,  it  was  upon  a  writ  of  error  holden,  that,  as  the  verdict  does  not 
find  in  which  of  the  particular  sums  the  defendant  was  indebted  to  the 
plaintiff,  he  ought  not  to  have  had  judgment ;  because,  as  it  is  uncertain 
for  which  of  the  sums  the  judgment  was  given,  the  defendant  can  never 
know  how  to  plead  the  judgment  in  bar,  in  case  another  action  should 
be  brought  for  any  of  the  sums  ;  and  the  judgment  was  reversed. 

Cro.  Ja.  653,  Treswoll  v.  Middleton.  ||  This  was  before  it  was  established,  that  the 
plaintiff  might  recover  i  less  sum  than  he  demands.     1  II.  Black.  249.11 


VERDICT.  347 

(Q)  Of  a  Verdict  not  finding  the  Matter  in  Issue  with  Certainty. 

It  appears  from  the  cases  already  cited,  that  the  verdicts  therein  were 
holden  to  be  bad,  because  they  were  uncertain  as  to  something  which  was 
material  to  the  gist  of  the  action  ;  and  it  may  be  inferred  from  the  follow- 
ing cases,  that  if  the  thing,  as  to  which  a  verdict  is  uncertain,  be  not  essen- 
tial to  the  issue,  the  verdict  is,  notwithstanding  such  uncertainty,  good. 

In  an  action  of  trespass  quare  clausum  fregit,  the  declaration  charged, 
that  the  trespass  was  committed  in  a  certain  acre  of  land,  of  which  the 
abuttals  were  set  forth.  Issue  being  joined  upon  the  plea  of  not  guilty,  the 
jury  found  the  defendant  guilty  of  a  trespass  in  one  half  of  the  acre,  and 
assessed  damages  for  the  plaintiff;  but  they  did  not  find  in  which  half  the 
trespass  was  committed.  The  verdict  was  holden  to  be  certain  enough : 
and  by  the  court, — As  damages  are  to  be  recovered  in  this  action,  and  not 
the  land  itself,  the  plaintiff  may  recover  damages  for  a  trespass  in  one  half 
of  the  acre;  and  it  is  not  material  in  which  half  it  was  committed. 
Nov,  125,  Winksworth  v.  May,  Mar.  97. 

In  an  action  of  debt  upon  the  1  Jac.  1,  c.  22,  for  felling  oaks  at  a  time 
prohibited,  not  guilty  was  pleaded,  and  issue  was  joined  upon  the  plea. 
The  jury  found  that  the  defendant  had  felled  ten  oaks,  and  that  the  value 
of  each  was  six  shillings  and  eight  pence.  Upon  a  motion  in  arrest  of 
judgment  it  was  insisted,  that  the  verdict  is  bad,  because  the  jury  have  not 
added  the  sums  together  and  found  a  precise  sum.  The  verdict  was  holden 
to  be  good :  and  by  the  court, — If  the  defendant  had  pleaded  nil  debet  the 
verdict  would  have  been  bad,  for  want  of  having  found  a  precise  sum  to 
be  due ;  but  it  is  not  necessary  that  a  precise  sum  should  be  found  to  be 
due,  where  the  plea  in  an  action  of  debt  is  not  guilty. 

1  Kcb.  835,  Duke  of  Norfolk  v.  Johnson. 

An  indictment  was  found  against  a  person  for  exercising  a  trade  unlaw- 
fully for  the  space  of  three  months  ;  to  wit,  from  a  day  certain  to  a  day 
certain.  Issue  being  joined  upon  the  plea  of  not  guilty,  the  defendant  was 
found  guilty  as  to  one  month,  without  saying  which ;  and  not  guilty  as  to 
the  two  other  months.  Upon  a  motion  in  arrest  of  judgment,  it  was  in- 
sisted, that  as  it  does  not  appear  for  which  of  the  three  months  the  defend- 
ant is  found  guilty,  he  cannot  plead  a  conviction  upon  this  indictment  in 
bar  of  a  second  for  the  same  offence.  The  verdict  was  holden  to  be  cer- 
tain enough :  and  by  the  court, — If  a  second  indictment  should  be  found 
against  the  defendant,  he  may  plead  a  conviction  upon  the  first  indictment 
for  one  month,  and  traverse  his  having  been  guilty  any  other  month. 

12  Mod.  5G1,  Anon.  ||  As  to  pleading  auterfois  acquit,  and  convict,  when  the  records 
vary  so  that  it  is  necessary  to  show  the  identity  of  the  offences  by  averment,  see 
1  Stark.  C.  L.  325 ;  and  see  tit.  Pleas  and  Pleadings,  (I)  13,  Vol.  vii.|| 

(3  The  jury  must  answer  to  the  whole  issue  with  which  they  have  been 
charged. 

Kerr  v.  Hawthorne,  4  Yeates,  295. 

The  verdict  of  the  jury  is  not  vitiated  by  their  finding,  in  addition  to 
what  is  in  issue,  matter  merely  superfluous. 

Cavene  v.  McMichacl,  8  S.  &  R.  441 ;  Fisher  v.  Kean,  1  Watts,  259. 

In  an  action  for  freight  and  demurrage,  the  verdict  was  in  these  words, 
"We  find  for  the  plaintiff,  and  are  of  opinion  that  the  plaintiff  has  already 
received,  out  of  the  property  of  the  defendant,  payment  in  full  for  the 
amount  of  freight  to  which  he  is  entitled."     Set  aside  for  uncertainty. 

Diehl  v.  Evans,  1  S.  &  11.  367. 


348  VERDICT. 

(R)  Of  a  Verdict  which  does  not  find  the  Matter  in  Issue  expressly. 

In  a  real  action,  if  the  jury  find  by  their  verdict  that  as  to  "  all  the  de- 
manded premises  above  low  water-mark,  the  defendant  has  a  better  right 
to  recover  than  the  tenant  has  to  hold,"  such  verdict  is  good,  it  being 
sufficiently  certain  to  enable  the  sheriff  to  execute  it  by  habere  facias. 

Adams  v.  Frothingham,  3  Mass.  352. 

After  the  verdict  has  been  received  and  recorded,  and  the  jury  has 
been  dismissed,  they  cannot  alter  their  verdict  on  an  allegation  of  mistake. 
Walter  v.  Junkins,  16  S.  &  R.  414. 

But  they  may  be  sent  back  to  correct  an  informality,  if  discovered 
before  they  are  dismissed. 

Walfran  v.  Eyster,  7  Watts,  38  ;  4  Watts,  357. 

When  the  issue  joined  is  material,  the  verdict  ought  to  find  the  issue 
for  or  against  the  party  tendering  it. 
Holmes  v.  Wood,  G  Mass.  1. 

When  a  verdict  finds  two  inconsistent  material  facts,  it  is  void. 
Stearns  v.  Barrett,  1  Mason,  153. 

A  qui  tarn  action  for  three  several  penalties  of  thirty  dollars  each :  a 
general  verdict  for  one  penalty,  without  designating  the  offence  of  which 
.the  defendant  was  guilty,  is  bad. 

Whitlock  v.  Tompkins,  1  Penning.  273. £/ 

(II)  Of  a  Ycrdict  which  does  not  find  the  Matter  in  Issue  expressly. 

The  matter  in  issue  was,  Whether  J  S  had  resigned  a  certain  bene- 
fice to  a  certain  bishop.  The  jury  found  an  instrument  under  the  seal 
«of  the  bishop,  upon  which  there  was  an  endorsement,  that  J  S  had  re- 
signed the  benefice  to  the  bishop,  and  that  he  had  accepted  the  resigna- 
tion. The  verdict  was  holden  to  be  bad ;  because  it  does  not  find 
expressly  that  J  S  had  resigned  the  benefice. 

Noy,  147,  Smith  v.  Foaves.     ||See  1  East,  lll.|| 

An  estate  having  been  granted  by  copy  of  court-roll  to  three  persons 
for  their  lives,  the  matter  in  issue  was,  Whether  a  heriot  was,  by  the 
custom  of  the  manor,  due  upon  the  death  of  one  of  the  three  persons. 
The  jury  found,  that  the  custom  of  the  manor  did  not  warrant  the  granting 
of  an  estate  for  three  lives.  The  verdict  was  holden  to  be  bad  ;  because 
it  only  finds  argumentatively  that  a  heriot  ought  not  to  be  paid;  Ayhereas 
it  is  the  duty  of  the  jury  to  find  the  matter  in  issue  expressly. 

2  Roll.  Abr.  693,  (S),  pi.  1. 

If  the  matter  in  issue  be  whether  an  estate  may  by  the  custom  of  a 
manor  be  granted  by  copy  of  court-roll  for  two  lives,  and  the  jury  find, 
that  an  estate  may  by  the  custom  of  the  manor  be  granted  for  three 
lives,  the  verdict  is  bad ;  because  it  is  only  argumentative  to  say,  that, 
inasmuch  as  a  greater  estate  may  by  the  custom  of  the  manor  be  granted, 
a  less  one  may. 

•2  Roll.  Abr.  693,  (S),  pi.  2. 

In  an  action  of  assumpsit  the  plaintiff  declared,  that  the  defendant  in 
consideration  of  four  pence  promised  to  give  the  plaintiff  forty  pounds. 
Issue  being  joined  upon  the  plea  of  non  assumpsit,  the  jury  found  a  special 
verdict  in  these  words,  "If  the  law  will  that  the  jury  shall  give  damages 
to  the  amount  of  forty  pounds,  then  they  assess  damages  to  that  amount ; 


VERDICT.  349 

(S)  Of  a  Verdict  which  finds  a  Matter  in  a  Foreign  County. 

but,  if  the  law  will  that  the  jury  may  give  damages  as  they  please,  then 
they  assess  damages  to  the  amount  of  three  pounds  and  no  more."    The 
verdict  was  holden  to  be  bad ;  because  the  jury  have  not  assessed  any 
damages  expressly. 
2  Roll.  Abr.  095,  pi.  6. 

If  the  matter  in  issue  be,  whether  a  thing  is  fraudulent,  the  court  will 
never  conclude  that  it  is  so,  however  strong  the  circumstances  of  fraud 
found  by  the  jury  are. 

Cro.  Car.  550,  Crisp  v.  Pratt. 

In  an  action  of  trover  the  court  will  never  intend  that  the  defendant 

is  guilty  of  a  conversion,  unless  it  be  expressly  found  that  he  is,  however 

strongly  the  circumstances  found  by  the  jury  may  tend  to  show  that  he 

is  guilty. 

2  Mod.  244,  245,  Mires  v.  Solebay ;  10  Rep.  57.  ||  See  2  Will.  Saund.  47  e  ;  Wil- 
ton v.  Girdlestone,  5  Barn.  &  A.  847. || 

The  court  will  never  intend,  from  any  evidence  of  circumstances  found 
by  the  jury,  that  the  defendant  in  an  indictment  is  guilty  of  the  offence 
therein  charged,  unless  the  jury  expressly  find  him  guilty. 

12  Mod.  628,  Rex  v.  Plummer. 

PWhen  a  declaration  in  trespass  contains  two  counts  for  the  same  tres- 
pass, and  the  defendant  pleads  the  general  issue  as  to  both,  and  a  special 
plea  in  bar  as  to  one  of  them ;  and  on  trial  a  verdict  is  found  for  him  on 
the  special  plea,  he  is  entitled  to  a  verdict  on  the  general  issue  like- 
wise. 

Curt  v.  Lowell,  19  Pick.  25. 

When  the  verdict  does  not  find  the  issue  joined  by  the  parties,  in  terms, 
yet,  if  the  court  can  collect  the  point  in  issue,  the  verdict  will  be  suffi- 
cient. 

Stearns  v.  Barrett,  1  Mason,  153. gf 

(S)  Of  a  Verdict  which  finds  a  Matter  in  a  Foreign  County. 

If  the  venue  in  an  action  for  a  transitory  trespass  be  laid  in  the  county 
of  A,  a  jury  of  the  county  of  A  may  find  a  verdict  in  the  action ;  notwith- 
standing it  appear  in  evidence,  that  the  trespass  was  committed  in  the 
county  of  B.    But  it  is  added,  that  they  are  not  bound  to  find  a  verdict. 

Bro.  Attaint,  pi.  104. 

The  latter  part  of  the  doctrine  of  this  book  is  in  another  book  express- 
ly denied  to  be  law ;  and  it  is  in  the  latter  laid  doAvn,  that  although  a 
venue  must  in  every  action  be  laid  in  some  place,  the  place  is  not  mate- 
rial in  an  action  for  a  transitory  trespass ;  and  that  the  jury  of  the  county 
where  the  venue  in  an  action  for  such  trespass  is  laid  are  bound,  under 
the  penalty  of  an  attaint,  to  find  the  defendant  guilty,  although  it  appear 
in  evidence  that  the  trespass  was  committed  in  another  county. 

6  Rep.  47,  Dowdale's  case.  ||  See  2  H.  Black.  161 ;  7  Term  R.  243  ;  1  Saund.  8  a, 
and  the  judgment  of  Abbott,  C.  J.,  R.  v.  Burdett.  4  Barn.  &  A.  171 :  Stcph.  on  Plead. 
310.|| 

In  an  action  of  debt  against  an  executor  he  pleaded  plene  administra- 
vit.  The  plaintiff  replied,  that  the  executor  had  assets  at  Exeter  in  the 
county  of  Devon.  Issue  being  joined  upon  the  replication,  the  jury 
found,  that  the  defendant  had  assets  in  Ireland.     This  was  holden  to  be 

2G 


350  VERDICT. 

(S)  Of  a  Verdict  -which  finds  a  Matter  in  a  Foreign  County. 

a  verdict  for  the  plaintiff:  and  by  the  court, — It  is  usual  for  merchants 
to  have  a  great  part  of  their  goods  in  foreign  parts,  and  God  forbid  that 
such  goods  should  not  be  liable  to  their  debts  in  England. (a) 

6  Rep.  47,  Dowdale's  case.  f|  (a)  Every  action  of  a  transitory  nature  may  be  laid 
in  any  county  in  England,  though  the  matter  arises  beyond  the  seas.  Per  Ld.  Mans- 
field, Mostyn  v.  Fabrigas,  Cowp.  181;  and  see  Melan  v.  Duke  of  Fitzjames,  1  Bos.  & 
Pul.  138.|| 

It  is  in  the  general  true,  that  the  jury  ought  to  find  every  local  matter 
in  its  proper  county. 
Bro.  Verd.  pi.  80 ;  2  Roll.  Abr.  688,  (M),  pi.  1. 

But  if  an  action  be  brought  for  a  local  matter  in  the  county  of  A,  and 
the  defendant,  by  pleading  a  release  in  the  county  of  B,(6)  make  it 
necessary  to  try  the  issue  concerning  the  validity  of  the  release  in  the 
county  of  B,  the  jury  of  the  county  of  B  may  assess  damages  for  the  local 
matter  in  the  county  of  A,  it  being  a  maxim  of  law,  that  multa  conce- 
duntur  per  obliquum  quce  non  conceduntur  per  directum. 

6  Rep.  47,  Dowdale's  case  ;  Bro.  Damage,  pi.  53,  pi.  103 ;  Bro.  Trial,  pi.  118 ; 
2  Roll.  Abr.  687,  pi.  1.  \\{b)  The  release  being  a  transitory  matter,  the  plea  would 
now  follow  the  venue  in  the  declaration,  and  it  would  be  tried  in  the  county  of  A.|| 

If  in  an  action  brought  in  the  county  of  A  the  general  issue  be  pleaded, 
the  jury  of  the  county  of  A  may  find  a  local  matter  in  any  other  county, 
provided  the  matter  be  incidental  to  the  issue  joined  in  the  county  of  A. 

In  an  action  of  debt  upon  the  statute  against  bargaining  for  pretended 
titles,  the  bargain  was  alleged  to  have  been  made  in  the  county  of  Nor- 
folk ;  but  the  land  bargained  for  was  in  the  county  of  Suffolk.  The  de- 
fendant pleaded  nil  debet,  and  issue  was  joined  upon  the  plea.  It  was 
holden,  that  the  jury  of  the  county  of  Norfolk,  who  tried  the  issue,  might 
find  the  value  of  the  land ;  because  the  value  thereof  is  incidental  to  the 
issue. 

2  Roll.  Abr.  688,  Pike  v.  Hassen,  3  Leon.  233.  ||  See  the  case  of  Way  v.  Yalley, 
6  Mod.  194,  195  ;  Salk.  651,  -where  debt  was  held  to  lie  on  a  demise  of  lands  in  Ja- 
maica ;  for  it  was  founded  on  privity  of  contract,  and  might,  therefore,  be  brought 
anywhere.  || 

If  in  an  action  of  debt  brought  in  the  county  of  A  against  an  heir,  he 
plead  riens  per  descent,  and  issue  be  joined  upon  the  plea,  the  jury  may 
find  assets  per  descent  in  any  county  ;  because  the  heir  is  answerable  for 
all  assets  per  descent. 

6  Rep.  47,  Dowdale's  case. 

In  an  action  of  detinue  for  a  release  made  in  the  county  of  A,  the 
plaintiff  alleged,  that,  by  reason  of  the  detention  of  the  release,  he  lost 
lands  in  the  county  of  B.  The  defendant  pleaded  non  detinet,  and  issue 
was  joined  upon  the  plea.  It  was  holden,  that  the  jury  of  the  county 
of  A,  who  tried  the  issue,  might  assess  damages  to  the  value  of  the  land : 
And  by  the  court, — As  the  loss  of  the  land  is  laid  in  aggravation  of  da- 
mages, it  is  incidental  to  the  issue. 

Bro.  Damage,  pi.  87 ;  Jenk.  20,  pi.  38. 

There  seems  to  be  good  reason  that  the  jury,  who  try  an  issue,  should 
in  every  case  assess  damages  for  a  matter  in  a  foreign  county,  which  is  laid 
in  aggravation  of  damages,  notwithstanding  the  matter  be  local;  otherwise 
a  writ  must  go  to  a  jury  of  the  foreign  county  to  inquire  of  the  damages 


VERDICT.  351 

(T)  Of  a  Verdict  which  is  contrary  to  a  Matter  of  Record. 

in  that  county,  which  would  not  be  so  proper ;  because  a  jury  are  not 
liable  to  an  attaint  for  a  false  verdict  upon  a  writ  to  inquire  of  damages. 

2  Roll.  Abr.  688,  (L),  pi.  3. 

If  an  action  be  brought  in  an  inferior  court,  the  jury  by  whom  an  issue 
in  the  action  is  tried  may  find  any  matter  incidental  to  the  issue,  although 
it  arise  out  of  the  jurisdiction  of  the  court. 

An  action  of  debt  being  brought  in  an  inferior  court  against  J  S  as 
heir  to  J  N,  the  defendant  pleaded  riens  per  descent,  and  issue  was  joined 
upon  the  plea.  The  jury  found  assets  out  of  the  jurisdiction  of  the  court, 
and  the  plaintiff  had  judgment.  A  writ  of  error  being  brought,  it  was 
assigned  for  error,  that  the  jury  had  no  power  to  find  assets  out  of  the 
jurisdiction  of  the  inferior  court.  The  judgment  was  affirmed  :  And  by 
the  court, — As  the  matter  found  out  of  the  jurisdiction  of  the  inferior 
court  is  incidental  to  the  issue,  the  verdict  is  good. 
Cro.  Ja.  502,  Bourn  v.  Carrington. 

In  an  action  upon  the  case  for  words,  brought  in  an  inferior  court,  the 
plaintiff  alleged,  that,  by  reason  of  the  speaking  of  the  words,  he  lost  cus- 
tomers at  a  place  out  of  the  jurisdiction  of  the  court.  The  defendant 
having  pleaded  not  guilty,  the  jury  found  a  verdict  for  the  plaintiff,  and 
assessed  damages  to  the  amount  of  a  hundred  marks  ;  and  judgment  was 
given  for  the  plaintiff.  A  writ  of  error  being  brought,  it  was  assigned 
for  error,  that  the  jury  have  assessed  damages  for  a  matter  arising  out 
of  the  jurisdiction  of  the  court,  which  it  was  said  they  had  no  power  to 
do.  The  judgment  was  affirmed :  And  by  the  court, — The  jury,  by  whom 
an  issue  is  tried  in  an  inferior  court,  cannot  find  an  original  matter,  unless 
the  same  arose  within  the  jurisdiction  of  the  court ;  but  the  verdict  is  in 
the  present  case  good ;  because  the  matter  alleged  out  of  the  jurisdiction 
of  the  court,  which  is  laid  in  aggravation  of  damages,  is  not  an  original 
matter,  but  incidental  to  the  issue. 
Cro.  Car.  570,  Ireland  v.  Lockwell.     ||  See  1  W.  Saund.  74  b.|| 

It  is  a  rule  of  law,  that  a  jury  cannot  find  a  person  indicted  for  an  of- 
fence guilty,  in  any  other  county  than  that  wherein  the  offence  was  com- 
mitted ;  it  being  a  maxim  of  law,  that  ubi  quis  delinquit  ibi  punietur. 

6  Rep.  47,  Dowdale's  case. 

But  if  J  S,  who  has  stolen  goods  in  the  county  of  A,  carry  them  into 
the  county  of  B,  he  may  be  found  guilty  of  larceny  in  the  county  of  B ; 
for,  as  the  legal  possession  as  well  as  the  property  of  the  goods  stolen 
does,  notwithstanding  the  felonious  taking,  continue  in  the  person  from 
whom  they  were  taken,  every  moment's  continuance  of  the  illegal  posses- 
sion obtained  by  the  thief  is  as  much  a  felonious  taking  as  the  first  taking 
was ;  and,  consequently,  he  does,  by  continuing  the  illegal  possession  of 
the  goods  in  the  county  of  B,  become  guilty  of  larceny  in  that  county. 

H.  P.  C.  09  ;  1  Hawk.  c.  33,  \  9.  ||  By  7  G.  4,  c.  64,  \  12,  where  any  felony  or  mis- 
demeanor shall  be  committed  on  the  boundaries  of  two  or  more  counties,  or  within 
five  hundred  yards  thereof,  or  shall  be  begun  in  one  county  and  completed  in  another, 
every  such  felony  or  misdemeanor  may  be  dealt  with,  inquired  of,  tried,  determined 
and  punished  in  any  of  the  said  counties,  in  the  same  manner  as  if  actually  and 
wholly  committed  therein.     And  see  Archbold's  C.  L.  3.|j 

(T)  Of  a  Verdict  which  is  contrary  to  a  Matter  of  Record. 

Every  verdict,  so  far  as  it  is  contrary  to  a  matter  of  record,  is  bad ; 
because  more  credit  is  due  to  the  record  than  to  the  verdict. 
Bro.  Verd.  pi.  96. 


352  VERDICT. 

(U)  Of  a  Verdict  which  is  contrary  to  a  Matter  of  Estoppel. 

If  the  jury  find  any  thing  contrary  to  what  one  of  the  parties  to  the 
action  has  confessed,  the  verdict  is  as  to  so  much  bad ;  because  it  is  a 
finding  contrary  to  a  matter  of  record. 

Bro.  Verd.  pi.  96. 

To  a  writ  of  scire  facias  brought  against  J  S  as  heir  to  his  father,  upon 
a  recognisance  entered  into  by  his  father,  he  pleaded  riens  per  descent. 
Issue  being  joined  upon  the  plea,  the  jury  found,  that  J  S  had  land  by  de- 
scent as  heir  to  his  father :  and  the  plaintiff  had  execution  of  the  land.  An 
action  of  ejectment  being  afterwards  brought  by  J  S,  in  order  to  recover 
the  possession  of  the  same  land,  the  jury  found  that  the  land  did  not  de- 
scend to  J  S  as  heir  to  his  father,  but  that  it  came  to  him  as  donee  in  tail 
upon  the  death  of  his  father.  The  verdict  was  holden  to  be  bad ;  because, 
it  is  contrary  to  the  verdict  in  the  action  upon  the  writ  of  scire  facias,  it 
being  thereby  found  that  the  land  did  descend  to  J  S  as  heir  to  his  father. 

Palm.  20,  Crawley's  case,  there  cited,  1  Roll.  R.  443.  ||  The  first  verdict  seems  to 
have  been  expi'essly  on  the  point  in  issue,  and  between  the  same  parties,  in  which 
case  a  verdict  is  conclusive.  See  judgment  of  De  Grey,  C.  J.,  11  Sta.  Tri.  261; 
22  Howell's  Sta.  Tri.  588;  and  see  1  Phillips  on  Ev.  304,  and  cases  there  collected.  [| 

It  is  in  one  book  laid  down  generally,  that,  if  a  verdict  have  been  found 
against  a  tenant  in  tail,  no  one  of  the  issue  in  tail  can  falsify  the  verdict. 
1  Roll.  R.  443,  Crawley  v.  Morton. 

But  in  another  book  it  is  said,  that  although  no  one  of  the  issue  in  tail 
can  falsify  a  verdict,  which  has  been  found  against  a  tenant  in  tail,  di- 
rectly, he  may  do  it  obliquely ;  as,  by  showing  that  the  tenant  in  tail  did 
not  give  a  material  thing  in  evidence,  which  it  is  in  his  power  to  give. 

Ld.  Raym.  1050,  Traviban  v.  Lawrence. 

If  a  venire  facias  de  novo  have  been  awarded,#the  first  verdict,  notwith- 
standing it  be  continued  upon  the  record,  is  a  nullity  ;  and,  consequently, 
the  second  verdict  is  not  bad,  although  it  be  contrary  to  the  first. 

Cro.  Ja.  627,  Langley  v.  Pain. 

(U)  Of  a  Verdict  which  is  contrary  to  a  Matter  of  Estoppel. 

It  is  more  proper  to  plead  a  matter  of  estoppel,  than  to  give  it  in  evi- 
dence ;  because,  when  the  matter  of  estoppel  is  pleaded,  the  judgment 
of  the  court  may  be  had  thereupon  without  going  to  trial. 

1  Inst.  227. 

But  a  matter  of  estoppel  may  be  given  in  evidence ;  and  if  such  matter 
be  given  in  evidence,  and  the  jury  find  contrary  thereto,  the  verdict  is  bad. 

1  Inst.  227 ;  Dyer,  171 ;  2  Rep.  4;  Cro.  Eliz.  140 ;  1  Leon.  206. 

||  But  it  is  now  settled  that,  unless  pleaded  by  way  of  estoppel,  such  mat- 
ter is  not  conclusive.  In  a  late  case  of  an  action  on  the  case  for  widening 
a  water  channel,  and  thereby  damaging  the  plaintiff's  mill,  the  Court  of 
King's  Bench  held,  that  a  verdict  obtained  by  the  defendant  in  a  former 
action,  which  had  been  brought  by  the  plaintiff  for  the  same  cause,  was 
not  conclusive  as  evidence  under  the  general  issue,  though  it  would  have 
had  that  effect  if  pleaded  in  bar  by  way  of  estoppel.  When  a  judgment  is 
pleaded  as  an  estoppel,  the  plaintiff  will  not  be  allowed  to  discuss  the  case 
with  the  defendant,  and  for  the  second  time  to  vex  him  by  the  agitation  of 
the  same  question ;  but  if  the  defendant  plead  not  guilty  in  the  second 
action,  he  has  thereby  elected  to  submit  his  case  to  the  jury,  who  are  to  give 
their  verdict  upon  the  whole  evidence  submitted  to  them.    The  jury  upon 


VERDICT.  353 

(W)  Of  a  Verdict  which  is  contrary  to  something  that  is  confessed,  &c. 

the  general  issue  are  to  try,  not  whether  the  plaintiff  is  estopped  from  try- 
ing the  question,  but  whether  the  defendant  be  really  guilty  of  the  wrongful 
act  imputed  to  him. 
Outram  v.  Morewood,  3  East,  354  ;  Vooght  v.  Winch,  2  Barn.  &  A.  062. || 

If  J  S,  after  having  by  indenture  demised  certain  premises  for  a  term 
of  years,  during  the  term  bring  an  action  of  ejectment  for  the  recovery 
of  the  possession  of  the  premises,  and  the  indenture  be  given  in  evidence, 
and  the  jury  find  contrary  thereto,  the  verdict  is  bad  ;  because  it  is  con- 
trary to  a  matter  of  estoppel :  for  the  jury  ought  in  such  case  either  to 
find  for  the  defendant,  or  to  find  the  matter  specially. 

Cro.  Car.  110,  Iseham  v.  Morrice.     ||  But  see  suprcl.\\ 

(W)  Of  a  Verdict  which  is  contrary  to  something  that  is  confessed,  or  not  denied,  in 

the  Pleadings. 

If  the  jury  find  one  thing  contrary  to  some  other  thing,  that  is  con- 
fessed, or  not  denied,  in  the  pleadings,  the  verdict  is  as  to  so  much  bad ; 
because  the  jury  had  nothing  to  do  with  that  which  is  confessed,  or  not 
denied  in  the  pleadings. 

Dyer,  147;  2  Rep.  4;  Cro.  Eliz.  283  ;  2  Roll.  Abr.  691,  R.  pi.  1 ;  {3  Cran.  270.} 

The  tenant  in  an  action  of  dower  pleaded,  that  the  husband  of  the  de- 
mandant did  not  die  seised  of  the  estate  of  which  she  demanded  dower, 
and  issue  was  joined  upon  the  plea.  The  jury  found  that  the  husband  died 
ceised :  but  they  likewise  found,  thut  the  estate  was  not  liable  to  dower. 
The  latter  part  of  the  verdict  was  holden  to  be  bad  ;  because,  as  the  plea 
does  not  deny  the  liability  of  the  estate  to  dower,  it  virtually  confesses  it. 
2  Roll.  Abr."o91,  (R),  pi.  2. 

If  the  demandant  in  an  action  of  waste,  wherein  the  waste  is  charged 
in  a  place  called  A,  plead,  that  there  is  no  such  place  as  A,  and  issue  be 
joined  upon  the  plea,  and  it  be  found  against  him,  the  jury  have  no  power 
to  inquire  whether  the  waste  were  committed  ;  because  the  commission 
of  the  waste  is  not  denied  in  the  plea. 

2  Roll.  R.  091,  (R),  pi.  3. 

An  action  of  debt  being  brought  upon  a  bond,  with  condition  to  per- 
form an  award  to  be  made  by  J  S,  the  defendant  pleaded,  that  J  S  did 
not  make  the  award  alleged  by  the  plaintiff.  The  plaintiff  replied,  that 
J  S  did  make  the  award  :  and  issue  was  joined  upon  the  replication.  The 
jury  found,  that  J  S  did  make  the  award ;  but  they  found  likewise  a  mat- 
ter in  avoidance  thereof.(rt)  The  latter  part  of  the  verdict  was  holden  to 
be  bad  ;  and  by  the  court, — The  award,  as  the  issue  is  only  whether  J 
S  did  make  it,  shall  be  taken  to  be  good,  unless  it  appear  upon  the  face 
thereof  to  be  bad ;  and,  as  the  defendant  could  not  have  rejoined  any 
matter  in  avoidance  of  the  award,  because  this  would  have  been  a  depart- 
ure, the  jury  had  no  power  to  find  such  matter. 

2  Roll.  Abr.  690,  pi.  10.  ||  (a)  See  1  Salk.  72 ;  1  W.  Saund.  327  b,  ace. ;  sed  vide 
1  W.  Saund.  103,  note  (1),  contra;  and  see  11  East,  188.  See  Pleas  and  Pleadings, 
(L),  Vol.  vn.|| 

In  an  action  of  debt  against  an  heir,  upon  the  bond  of  his  father,  the 
defendant  pleaded,  that  he  had  nothing  by  descent  except  twenty  acres 
of  land  in  A.  The  plaintiff  replied,  that,  besides  the  twenty  acres  in  A, 
he  had  forty  acres  of  land  by  descent  in  B.  The  defendant  rejoined,  that 
he  had  not  forty  acres  of  land  by  descent  in  B,  and  the  issue  ioined  upon 

Vol.  X.— 45  2  g  2 


354  VERDICT. 

(X)  What  Omission  in  the  Pleadings  is  cured  by  a  Verdict. 

the  rejoinder  was  found  for  him.    It  was  holden,  that  the  plaintiff  should 
have  judgment,  notwithstanding  the  verdict  for  the  defendant :  and  by 
the  court, — As  the  defendant  has  confessed  the  having  of  twenty  acres 
of  land  by  descent,  the  plaintiff  has  a  right  to  judgment  as  to  these. 
Jenk.  102,  Molineux's  case. 

In  an  action  of  replevin  the  defendant  alleged,  that  the  plaintiff  held  of 
him  by  the  yearly  rent  of  twelve  shillings,  and  a  heriot  upon  every  aliena- 
tion ;  and  he  avowed  the  taking  for  a  heriot.  The  plaintiff  traversed,  that 
a  heriot  was  due  upon  every  alienation,  and  issue  was  joined  upon  the 
traverse.  The  jury  found,  that  the  holding  was  by  the  yearly  rent  of  three 
shillings,  and  a  heriot  upon  every  alienation.  Upon  a  motion  in  arrest  of 
judgment,  it  was  insisted,  that  the  defendant  ought  not  to  have  judgment ; 
because  the  tenure  found  is  different  from  that  alleged.  Judgment  was 
given  for  the  defendant :  and  by  the  court, — It  is  alleged  in  the  plead- 
ings, that  the  plaintiff  held  of  the  defendant  by  the  yearly  rent  of  twelve 
shillings,  and  heriot  upon  every  alienation ;  and  it  is  a  rule  of  law,  that 
whatever  is  well  alleged  in  the  pleadings,  and  not  denied,  shall  be  taken 
to  be  as  alleged,  notAvithstanding  the  jury  find  contrary  thereto. 

2  Mod.  5,  Wilcox  v.  Skipwith. 

(X)  What  Omission  in  the  Pleadings  is  cured  by  a  Verdict. 

0  When  a  declaration  or  other  pleading  sets  forth  a  good  title  or  ground 
of  action  defectively,  the  imperfection  will  be  cured  by  a  verdict. 

Read  v.  Chelmesford,  16  Pick.  128 ;  Wheeler  v.  Train,  3  Pick.  255;  Ward  v.  Bar- 
tholomew, 6  Pick.  409  ;  Worster  v.  Canal  Bridge,  16  Pick.  541 ;  Avery  v.  Tyringham, 
3  Mass.  160 ;  Moor  v.  Boswell,  5  Mass.  306 ;  7  Mass.  169 ;  United  States  v.  The 
Virgin,  1  Pet.  C.  C.  R.  7  ;  Farwell  v.  Smith,  2  Green,  133 ;  Stilson  v.  Toby,  2  Mass. 
521 ;  Coleman  v.  Craysdale,  3  J.  J.  Marsh.  541 ;  Dickerson  v.  Hays,  4  Blackf.  107  ; 
Stanley  v.  Whipple,  2  M'Lean,  35  ;  G'aylord  v.  Payne,  4  Conn.  190;  Spencer  v.  Over- 
ton, 1  "Day,  183 ;  Fuller  v.  Hampton,  5  Conn.  416  ;  Hendricks  v.  Seely,  6  Conn.  176  ; 
Phelps  v.  Sill,  1  Day,  315;  Russell  v.  Slade,  12  Conn.  455;  Story  v.  Barrell,  2 
Conn.  665.£f 

The  want  of  having  set  out  the  writ,  which  would  be  bad  upon  a  de- 
murrer, is  cured  by  a  verdict :  for  the  court  will,  in  support  of  the  ver- 
dict, intend  it  to  have  been  proved  at  the  trial  that  there  was  a  writ. 

2  Lill.  Abr.  797. 

But  if  a  writ,  which  appears  upon  the  face  thereof  to  be  bad,  is  set  out, 
the  badness  of  the  writ  is  not  cured  by  a  verdict ;  for  it  can  never  be  in- 
tended, that  such  writ  was  proved  to  be  good. 

2  Lill.  Abr.  797. 

If  it  be  not  alleged  in  the  declaration  in  an  action  of  trespass,  that  the 
trespass  charged  was  committed  upon  a  day  certain,  the  declaration  is 
bad  upon  demurrer.  But  the  omission  of  such  allegation  is  cured  by  a 
verdict;  for,  as  the  day  is  not  material  in  an  action  of  trespass,  the  court 
■will,  in  support  of  the  verdict,  intend,  that  the  trespass  was  proved  to 
have  been  committed  upon  a  day  antecedent  to  the  commencement  of  the 
action. 

Carth.  389,  Blackall  v.  Eale ;  Salk.  662,  S.  C. ;  5  Mod.  287,  S.  C.  Com.  12. 

If  a  defective  title  be  set  out  in  the  pleadings,  the  defect  is  cured  by  a 
verdict ;  for  the  court  will,  in  support  of  the  verdict,  intend,  that  it  was 
supplied  by  evidence :  but,  if  a  bad  title  be  set  out  in  the  pleadings,  the 


VERDICT.  355 

(X)  What  Omission  in  the  Pleadings  is  cured  by  a  Verdict. 

badness  is  not  cured  by  a  verdict :  for  the  court  will  never  intend,  that  a 
title,  "which  is  apparently  bad,  was  proved  to  be  good. 

Plowd.  202  ;  Salk.  365  ;  {2  Mass.  T.  Rep.  521,  Stilson  v.  Tobey;  1  Day,  183,  Spen- 
cer v.  Overton;  Ibid.  186,  n.{  [So,  if  the  plaintiff  wholly  omits  to  state  his  title; 
for  in  that  case  there  is  no  room  for  presumption.  Dougl.  683  ;]  { 1  Johns.  Rep.  4G2, 
470,  Bayard  v.  Malcolm;  2  Johns.  Rep.  550,  S.  C;  1  Saund.  228  c,  note  by  Sent. 
Williams.} 

I A  verdict  does  not  cure  a  mistake  in  the  nature  of  the  action. 

1  Cran.  332,  Marine  Ins.  Co.  of  Alexandria  v.  Young.  See  1  Cain.  323,  Purdy  v. 
Delavan. } 

||  The  rule,  as  deduced  from  the  authorities  by  Serjt.  Williams,  is,  that 
where  there  is  any  defect,  imperfection,  or  omission  in  any  pleading, 
whether  in  substance  or  form,  which  would  have  been  a  fatal  objection 
upon  demurrer,  yet  if  the  issue  joined  be  such  as  necessarily  required  on 
the  trial  proofs  of  the  facts  so  defectively  or  imperfectly  stated  or  omitted, 
and  without  which  it  is  not  to  be  presumed  that  either  the  judge  would 
direct  the  jury  to  give,  or  the  jury  would  have  given  the  verdict,  such 
defect,  imperfection  or  omission  is  cured  by  verdict,  by  the  common  law, 
or,  in  the  phrase  often  used,  such  defect  is  not  any  jeofail  after  verdict. 
But  where  there  was  any  defect,  omission,  or  imperfection,  though  in 
form  only,  in  some  collateral  parts  of  the  pleading,  that  were  not  in  issue 
between  the  parties,  so  that  there  was  no  room  to  presume  that  the  defect 
or  omission  was  supplied  by  proof,  a  verdict  did  not  cure  them  by  the 
common  law ;  but  these  defects  are  now  cured  by  the  several  statutes  of 
jeofails  after  verdict,  and  by  the  4  Ann.  c.  16,  §  2,  after  judgment  by 
default.  But  still  if  the  plaintiff  states  a  defective  title,  or  totally  omits 
to  state  any  title,  or  cause  of  action,  a  verdict  will  not  cure  such  defect, 
either  at  common  law,  or  by  the  statute  of  jeofails;  for  the  plaintiff  need 
not  prove  more  than  what  is  expressly  stated  in  the  declaration,  or  is 
necessarily  implied  from  the  facts  which  are  stated. 

1  Will.  Saund.  227,  and  the  cases  there  collected;  and  see  2  W.  Saund.  319  a,  b,  c.|| 

In  an  action  of  assumpsit  upon  a  bill  of  exchange  there  was  a  verdict 
for  the  plaintiff,  and  judgment  was  given  for  him.  A  writ  of  error  being 
brought,  it  was  assigned  for  error,  that  it  is  not  alleged  in  the  declara- 
tion, that  the  plaintiff  did  pay  the  money  due  upon  the  bill  to  the  last 
endorsee ;  and  that,  as  this  is  not  alleged,(a)  the  plaintiff  ought  not  to 
recover ;  because  the  defendant,  unless  the  money  were  paid  to  the  last 
endorsee,  is  liable  to  an  action  for  it.  The  judgment  was  affirmed  :  and 
by  the  court — After  a  verdict  it  shall  be  intended  that  the  money  was 
proved  to  have  been  paid  to  the  last  endorsee.  It  is  alleged,  that  the 
money  was  paid  upon  account  of  the  defendant,  which  it  cannot  have 
been,  unless  it  was  paid  to  the  last  endorsee. 

Carth.  130,  Brunetti  v.  Lewin.  ||(a)  It  was  only  alleged  that  the  money  was  paid 
by  plaintiff,  not  stating  to  whom.|| 

p  After  a  verdict,  every  assumpsit  alleged  in  the  declaration  is  to  be 
taken  as  an  express  assumpsit. 

Insurance  Company  of  Alexandria  v.  Young,  1  Cranch,  341 ;  Huntingdon  v.  Todd, 
3  Day's  Cas.  479.0  6 

^  In  an  action  of  covenant  the  breach  assigned  was,  that  the  defendant 
did  not  offer  to  grant  an  advowson  to  the  plaintiff  before  he  granted  it  to 
J  S.  The  defendant  pleaded,  that  he  did  not  grant  the  advowson  to  J 
S,  and  issue  was  joined  upon  the  plea.     A  verdict  being  found  for  the 


356  VERDICT. 

(X)  What  Omission  in  the  Pleadings  is  cured  by  a  Verdict. 

plaintiff,  it  "was  in  arrest  of  judgment  insisted,  that  it  is  not  alleged,  that 
the  defendant  granted  the  advowson  to  J  S  by  deed,  and,  consequently, 
as  no  grant  of  advowson  except  it  he  by  deed  is  good,  there  is  not  a 
breach  of  covenant  assigned.  Judgment  was  given  for  the  plaintiff:  and 
by  the  court, — It  shall,  in  support  of  the  verdict,  be  intended,  that  a 
grant  to  J  S  by  deed  was  proved. 

Hutt,  54,  Lightfoot  v.  Brightman.  ||  See  1  Will.  Saund.  227,  n.  (1),  and  cases 
there  cited.  || 

In  another  book,  "wherein  this  case  is  cited,  it  is  said,  that,  as  no  grant 
of  an  advowson,  except  it  be  by  deed,  is  good,  it  is  to  be  presumed,  that 
the  jury  would  not  have  found  a  verdict  for  the  plaintiff,  unless  a  grant 
to  J  S  by  deed  had  been  proved. 

10  Mod.  301,  Muston  v.  Yateman. 

[In  an  action  against  an  unqualified  person  for  using  a  gun,  the  decla- 
ration stated,  that  the  defendant  used  a  gun,  being  an  engine  for  the  de- 
struction of  game.  In  arrest  of  judgment  it  was  objected,  that  it  was 
not  averred,  that  the  defendant  used  the  gun  for  the  destruction  of  game, 
but  the  court  overruled  the  objection.  Lord  Mansfield  observed,  that, 
according  to  one  way  of  pointing,  the  offence  was  sufficiently  charged, 
and  that  such  an  ambiguity,  though  it  might  be  a  good  cause  of  special 
demurrer,  or  an  objection  to  a  conviction,  was  cured  by  verdict. 

Avery  v.  Hoole,  Covqt.  825.]     |J  See  Huntingtower  v.  Gardiner,  1  Barn.  &  C.  297. || 

The  omission  of  alleging  a  matter  in  the  pleadings,  which  is  essential 
to  the  action,  is  never  cured  by  a  verdict ;  because  every  such  matter,  it 
being  traversable,  must  be  alleged,  that  it  may  be  put  in  issue. 

If  the  declaration  in  an  action  of  trespass,  brought  by  a  master  for  the . 
beating  of  his  servant,  do  not  charge,  that  by  reason  of  the  beating  the 
plaintiff  lost  the  service  of  his  servant,  the  omission  is  not  cured  by  a 
verdict ;  the  loss  of  service  being  the  gist  of  the  action. 

1  Bulstr.  1G3,  Anon. 

The  declaration  in  an  action  of  trespass,  brought  for  keeping  a  bull 
accustomed  to  run  at  persons,  did  not  charge,  that  the  defendant  knew  the 
bull  was  accustomed  to  run  at  persons.  It  was  holden,  that  the  omission 
is  not  cured  by  a  verdict ;  because  it  is  an  omission  of  that  which  is  the 
gist  of  the  action.  As  it  was  not  moreover  necessary  for  the  plaintiff  to 
prove  that  the  defendant  knew  the  bull  was  accustomed  to  run  at  per- 
sons, it  not  being  alleged,  the  court  cannot  intend  that  this  was  proved. 

Salk.  662,  Buxendin  v.  Sharp ;  Sayer,  282. 

i  So  in  an  action  for  a  deceit  in  a  sale  by  a  false  affirmation,  the  want 
of  an  allegation  in  the  declaration  that  the  defendant  made  the  affirma- 
tion fraudulently  or  knoioing  it  to  be  false,  is  not  cured  by  the  verdict; 
for  the  fraud  or  scienter  is  the  gist  of  such  actions. 

1  Johns.  Rep.  453,  Bayard  v.  Malcolm;  2  Johns.  Rep.  550,  S.  C.} 
[In  an  action  on  a  bill  of  exchange  against  the  endorser,  the  plaintiff 
did  not  allege  notice  to  the  defendant  of  the  refusal  by  the  acceptor,  or 
indeed  a  demand  and  refusal  by  the  acceptor  on  the  day  when  the  bill 
was  payable.  It  was  insisted,  that  this  was  cured  by  the  verdict ;  that 
it  must  be  presumed  that  those  facts  were  proved  at  the  trial.  But  by 
the  court, — It  was  not  requisite  for  the  plaintiff  to  prove,  either  the 
demand  on  the  acceptor,  or  notice  to  the  defendant ;  because  they  are 
neither  laid  in  the  declaration,  nor  are  they  circumstances  necessary  to  any 


VERDICT.  357 

(X)  What  Omission  in  the  Pleadings  is  cured  by  a  Verdict. 

of  the  facts  charged.  If  they  were  to  be  presumed  to  have  been  proved, 
no  proof  at  the  trial  can  make  good  a  declaration,  which  contains  no 
ground  of  action  on  the  face  of  it.  The  promise  alleged  to  have  been 
made  by  the  defendant  is  an  inference  of  law,  and  the  declaration  does 
not  contain  premises  from  which  such  an  inference  can  be  drawn. 

Kushton  v.  Aspinall,  Dougl.  679.     {Vide  1  Johns.  Ca.  99,  Leffingwcll  v.  White.} 

In  an  action  of  debt  on  19  G.  2,  c.  30,  for  the  penalty  of  50/.  for  im- 
pressing a  mariner  in  the  West  India  trade,  it  was  not  averred  in  the  decla- 
ration that  he  had  not  deserted  from  any  of  his  majesty's  ships  of  war.  A 
verdict  was  had  for  the  plaintiff,  and  upon  motion  in  arrest  of  judgment 
for  this  omission,  it  was  contended  by  his  counsel,  that  it  must  be  pre- 
sumed, after  verdict,  that  this  was  proved  at  the  trial.  But  by  the  court, — 
Nothing  is  to  be  presumed  after  verdict,  but  what  is  expressly  stated  in  the 
declaration,  or  what  is  necessarily  implied  from  those  facts  which  are  stated. 
At  the  trial  it  is  only  necessary  to  prove  what  is  alleged  in  the  declaration  : 
and  here  it  was  only  alleged  that  the  mariner  had  not  deserted  from  a 
particular  ship :  therefore  we  cannot  presume,  that  in  this  case  it  was 
proved  he  had  not  deserted  from  any  of  his  majesty's  ships. 

Spieres  v.  Parker,  1  Term  R.  141.] 

{In  an  action  on  st.  84  Geo.  3,  c.  23,  for  pirating  a  pattern  for  printing 
calico,  the  omission  of  an  averment  in  the  declaration,  "  that  the  day  of 
first  publishing  the  pattern  was  printed  at  each  end  of  the  piece  of  calico" 
(which,  together  with  the  name  of  the  proprietor,  is  required  by  that  sta- 
tute, the  monopoly  being  limited  to  three  months  from  the  day  of  first  pub- 
lishing the  pattern,)  was  holden  to  be  aided  by  verdict ;  it  being  stated  in 
the  declaration  that  the  defendants  pirated  the  pattern  "within  the  term  of 
three  months  from  the  day  of  the  first  publishing  thereof,  and  while  the 
plaintiffs  were  entitled  to  have  the  sole  right  of  printing  the  same,  &c." 

7  Term,  518,  Macmurdo  v.  Smith.} 

||  So,  where  in  an  action  on  the  case  for  an  injury  to  the  plaintiff's 
reversion  in  a  yard,  the  declaration  stated  injuries  in  terms  which  most 
aptly  applied  to  the  possession  only,  and  there  was  no  allegation  that  the 
plaintiff  had  been  injured  in  his  reversionary  estate,  the  court,  after 
verdict  for  the  plaintiff,  held  that  the  omission  was  not  cured,  and  the 
judgment  was  arrested. 

Jackson  v.  Pesked,  1  Maule  &  S.  234.  || 

So,  in  debt  on  the  2  &  3  Ed.  6,  c.  1,  for  not  setting  out  tithes,  an  omis- 
sion to  state  that  the  tithes  had  been  paid  or  payable  within  forty  years 
next  before  the  act,  was  held  fatal  after  verdict  for  the  plaintiff. 

Butt  v.  Howard,  4  Barn.  &  A.  655. 

Where  the  declaration  alleged  that  the  defendant  was  assistant  overseer, 
that  a  rate  for  relief  of  the  poor  was  made  and  duly  allowed,  and  although 
defendant  as  such  assistant  overseer  had  the  rate  in  his  possession,  and 
plaintiff  at  a  reasonable  time  demanded  the  inspection  of  it,  and  tendered 
one  shilling,  yet  defendant  refused  to  produce  it,  whereby  he  forfeited 
20?. ;  it  was  held,  on  motion  in  arrest  of  judgment,  that  the  count  was 
sufficient ;  for  if  the  defendant  had  the  rate  in  his  custody  as  assistant 
overseer,  it  might  be  presumed,  after  verdict,  that  it  was  his  duty  to  pro- 
duce it  when  lawfully  demanded. 

Bennett  v.  Edwards,  8  Barn.  &  C.  702 ;  6  Bing.  230,  S.  C. ;  and  see  8  Barn.  &  C. 
114. 


358  VERDICT. 

(X)  What  Omission  in  the  Pleadings  is  cured  by  a  Verdict. 

So,  "where  the  plaintiff  declared,  that  in  consideration  that  plaintiff,  at 
defendant's  request,  would  consent  to  suspend  proceedings  against  A  on 
a  cognovit,  defendant  promised  to  pay  30/.  on  account  of  the  debt  on  the 
first  of  April  next,  and  the  declaration  averred  generally  that  the  plain- 
tiff did  suspend  proceedings  on  the  cognovit,  it  was  held,  that  after 
verdict  this  averment  was  sufficient,  since  it  must  be  intended  to  have 
been  proved  that  plaintiff  either  suspended  proceedings  absolutely  or  for 
a  reasonable  time. 

Payne  v.  Wilson,  7  Barn.  &  C.  423. 

In  an  action  against  the  Bank  of  England,  the  declaration  alleged  that 
the  plaintiff  was  lawfully  possessed  of  certain  three  per  cent,  annuities  in 
the  care  of  the  defendants,  and  standing  in  their  books  in  the  name  of  the 
plaintiff,  for  the  purpose,  amongst  other  things,  of  paying  him  all  dividends 
which  might  accrue  due  in  respect  of  the  stock  whilst  the  same  should  not 
be  transferred  in  the  said  books  with  the  authority  of  the  plaintiff;  and  that 
the  plaintiff  was  entitled  to  the  stock ;  and  that  it  had  not  been  transferred 
in  the  books  to  any  person  by  his  authority  ;  and  thereupon  it  was  the  duty 
of  the  defendants  to  pay  the  plaintiff  the  dividends  whilst  the  same  was 
not  transferred,  yet  the  defendants  had  not  paid  them.  This  declaration 
was  held  bad  for  want  of  an  averment  that  the  dividends  had  been  issued 
by  the  government  to  the  bank ;  since,  until  they  were  issued,  it  was  not 
the  duty  of  the  bank  to  pay  them ;  and  there  was  nothing  in  the  verdict 
of  the  jury  to  remedy  the  want  of  such  an  averment. 

Bank  of  England  v.  Davis,  5  Barn.  &  C.  185. 

Where  the  assignee  of  the  reversion  sued  the  assignee  of  the  lessee  in 
covenant  for  rent,  &c,  and  the  plaintiff  in  his  declaration  alleged  only 
that  the  lessor  was  seised  of  the  tenements,  without  showing  of  what 
estate ;  this  was  held,  after  verdict,  sufficient. 

Harris  v.  Beavan,  4  Bing.  646. 

Where  a  declaration  on  the  gaming  act  alleged  that  the  party  lost  to 
the  defendant  by  playing  at  rouge  et  noire,  this  was  held  sufficient  after 
verdict,  (on  error,)  without  alleging  the  money  to  have  been  lost  by  play- 
ing with  him. 

Taylor  v.  Willans,  3  Bing.  449. || 

.6  When  an  issue  has  been  tendered  but  not  joined,  if  the  parties  pro- 
ceed to  trial,  and  a  verdict  be  found  by  the  jury,  it  will  be  sufficient  to 
support  a  judgment  rendered  upon  it. 

Whiling  v.  Cochran,  9  Mass.  532. 

After  a  verdict,  finding  a  promise,  it  will  be  intended  that  a  considera- 
tion was  proved. 
Hallv.  Crandall,  Kirby,  402. 

The  appearance  of  an  infant  is  cured  by  the  verdict. 
Apthorp  v.  Backus,  Kirby,  407. 

A  verdict  cures  the  want  of  an  averment  of  notice  in  an  action  of  as- 
sumpsit, against  a  town  for  maintaining  one  of  its  own  paupers. 
Spencer  v.  Overton,  1  Day's  Cas.  183. 

A  declaration  in  assumpsit,  laying  the  promise  on  the  day  after  the 
test  of  the  writ,  but  the  breach  before,  is  good  after  verdict. 
Bomis  v.  Faxon,  4  Mass.  263. 


VERDICT.  359 

(Y)  What  Mistake  in  Copy  of  Issue  is  cured  by  Verdict. 

Every  fact  necessary  to  be  proved  at  the  trial,  in  order  to  support  the 
declaration,  must  be  taken  to  have  been  proved,  after  the  verdict. 

Stimpson  v.  Gilchrist,  1  Greenl.  202. 

Where  the  action  is  brought  to  recover  foreign  money,  and  the  value 
is  not  averred,  the  verdict  finding  the  value  in  dollars,  cures  the  error. 

Brown  v.  Barry,  3  Dall.  1G5. 

If  the  declaration  on  an  assignment  of  a  patent  right,  omit  to  state  the 
assignment,  it  is  cured  by  verdict. 

Dobson  v.  Campbell,  1  Sumn.  319. 

A  declaration  which  in  substance  contains  all  the  essentials  of  a  cause 
of  action,  is  good  after  verdict. 

Schlosser  v.  Brown,  17  Serg.  &  R.  250. 

When  damages  are  claimed  in  the  declaration  for  a  time  after  the  com- 
mencement of  the  suit,  judgment  will  be  arrested  on  error,  but  if  the 
time  be  laid  under  a  scilicet,  or  it  is  insensible  or  impossible,  the  error 
will  be  cured  by  the  verdict. 

Irvine  v.  Ball,  7  Watts,  327.0 

(Y)  What  Mistake,  or  Omission,  in  the  Copy  of  the  Issue  delivered,  is  cured  by  a 

Verdict. 

In  the  first  count,  in  the  copy  of  the  issue  delivered  in  an  action  of 
assumpsit,  instead  of  its  being  alleged,  that  the  defendant  was  indebted  to 
the  plaintiff,  it  was  alleged,  that  the  plaintiff  was  indebted  to  the  plaintiff. 
The  other  counts  were  right,  and  the  mistake  in  the  first  count  was  cor- 
rected in  the  record  of  nisi  prius  ;  but  it  was  done  without  leave  of  the 
court.  A  motion  being  made  to  set  aside  the  verdict  obtained  by  the 
plaintiff,  on  account  of  the  variance  betwixt  the  copy  of  the  issue  delivered 
and  the  record  of  nisi  prius,  it  was  holden,  that,  as  the  variance  is  not 
in  a  thing  material  to  the  issue,  the  verdict  is  good. 

Barnes,  477,  Johns  v.  Smith. 

Upon  a  rule  to  show  cause  why  the  verdict  obtained  by  the  plaintiff 
should  not  be  set  aside,  it  appeared,  that  in  the  recital  of  the  writ  in  the 
copy  of  the  issue  delivered,  the  defendant,  whose  name  was  John,  was 
called  James ;  that  in  other  parts  of  the  copy  of  the  issue  delivered  he 
was  called  John ;  and  that  no  defence  was  made  at  the  trial.  The  rule 
was  discharged  :  and  by  the  court, — The  variance  in  this  case  is  so  im- 
material, that  no  advantage  can  be  taken  thereof  after  a  verdict. 

MS.  Rep.  Mather  v.  Brinker,  East.  4  G.  3,  in  C.  B. ;  ||  2  Wils.  R.  243 ;  and  see 

1  Wils.  160.|| 

||  Where  a  bill  was  filed  against  three  persons  by  name,  and  on  entering 
the  finding  of  the  jury  on  the  postea,  part  of  the  Christian  name  of  one 
of  them  was  omitted,  it  was  held  no  ground  of  error. 
May  v.  Pige,  1  Bing.  314;  8  Moo.  297.  || 

These  words,  et  prcedictus  querens  similiter,  were  inserted  in  the  copy 

of  the  issue  delivered,  in  the  room  of  the  words,  et  prcedictus  defendens 

similiter:  the  verdict  was  holden  to  be  bad. 

1  Barnard.  58,  Scrimshaw  v.  Proctor.  ||  In  a  late  case  this  mistake  was  held 
amendable  after  verdict,  and  not  a  ground  for  arresting  the  judgment.  Wright  q.  t. 
v.  Horton,  6  Maule  &  S.  50  ;  1  Stark  Ca.  400.  || 

In  the  copy  of  the  issue  delivered,  the  name  of  the  defendant  was  in- 
serted instead  of  that  of  the  plaintiff,  in  the  joining  of  issue  ;  but  in  the 


360  VERDICT. 

(Y)  What  Mistake  in  Copy  of  Issue  is  cured  by  Verdict. 

record  of  nisi  prius  the  plaintiff's  name  was  inserted.  A  motion  was 
made  to  set  aside  the  verdict  obtained  by  the  plaintiif,  on  account  of  the 
variance  betwixt  the  copy  of  the  issue  delivered  and  the  record  of  nisi 
prius.  The  verdict  was  holden  to  be  good,  because  it  was  general,  and 
there  was  another  issue  which  was  well  joined. 
Barnes,  475,  Thompson  v.  Simmons. 

These  words,  and  the  said  plaintiff  likewise,  were  omitted  in  the  copy 
of  the  issuo  delivered.  The  plaintiff  obtained  a  verdict :  but  as  the  de- 
fendant relied  upon  the  materiality  of  the  omission,  and  made  no  defence 
at  the  trial,  a  rule  was  granted  to  show  cause  why  the  verdict  should  not 
be  set  aside.  Upon  showing  cause,  it  was  insisted,  that  the  record  of 
nisi  prius  is  right,  and  that  the  issue  is  amendable  after  a  verdict.  The 
rule  was  made  absolute  :  and  by  the  court, — This  is  a  material  variance, 
and,  as  the  defendant  relied  upon  it,  and  did  not  make  any  defence  at 
the  trial,  it  is  fatal. 

Bur nes,  475,  Rye  v.  Crossman. 

In  an  action,  brought  by  the  endorsee  of  a  promissory  note  against  an 
endorsor,  the  name  of  the  endorsor  was  omitted  in  the  copy  of  the  issue 
delivered,  which  was  in  these  words,  he  the  said  endorsed,  instead  of  these 
words,  he  the  said  J S,  endorsed;  but  the  endorsor's  name  was  inserted 
in  the  record  of  nisi  prius.  The  plaintiff  obtained  a  verdict ;  but,  as  the 
defendant  relied  upon  the  materiality  of  the  variance,  and  did  not  make 
any  defence  at  the  trial,  the  verdict  was  set  aside. 
Barnes,  47G,  Wreathcock  v.  Bingham. 

These  words,  and  the  said  plaintiff  likewise,  were  omitted  in  the  copy 
of  the  issue  delivered ;  but  they  were  inserted  in  the  record  of  nisi  prius. 
Upon  showing  cause  against  a  rule  for  setting  aside  the  verdict  obtained 
by  the  plaintiff,  it  appeared  that  one  of  the  counsel  for  the  defendant  did 
at  the  trial  object  to  the  sufficiency  of  the  plaintiff's  evidence.  This, 
although  no  witness  for  the  plaintiff  was  cross-examined,  and  although 
no  witness  was  called  for  the  defendant,  was  holden  to  be  such  a  making 
of  defence  at  the  trial  as  cured  the  omission. 

Barnes,  445,  Grave  v.  Cliff;  ||and  sec  Cowp.  407;  2  Bing.  3S4.|| 

||  Where  in  trespass  there  was  a  variance  between  the  issue  delivered 
and  the  nisi  prius  record,  and  the  record  agreed  with  the  declaration,  the 
court  refused  to  grant  a  new  trial ;  for  the  issue  delivered  was  no  record, 
and  the  defendant  need  not  have  accepted  it,  as  it  was  incorrect. 

Jones  v.  Tatham,  8  Taunt.  634. 

And  the  court  made  the  same  determination  in  a  case  where  it  did  not 

appear  what  were  the  terms  of  the  declaration ;  since,  if  that  was  right,  the 

defendant  ought  to  have  returned  the  issue  for  not  corresponding  with  it. 

Doe  dcm.  Cutterill  v.  Wylde  ;  2  Barn.  &  A.  472  ;  and  see  1  Chit.  R.  277  ;  Tidd's 
Prac.  937. 

Where,  to  a  rejoinder  concluding  with  a  verification,  the  plaintiff  added 

the  similiter,  instead  of  taking  issue  on  it,  and  he  took  the  record  down 

to  trial,  and  the  defendant  obtained  a  verdict,  the  court  refused  to  grant 

a  new  trial,  but  amended  the  record. 

Grundy  v.  Moll,  1  New  R.  28 ;  and  see  Cooke  v.  Burke,  5  Taunt.  1G4 ;  sed  vid< 
2  Moo.  215.11 


VERDICT.  361 

(Z)  Of  divers  Things,  which  did  not  fall  properly  under  any  of  the  foregoing  Heads, 
|land  herein  of  Cases  where  the  Defect  of  the  Verdict  may  be  supplied  by  Writ  of 
Inquiry,  or  by  Amendment.  || 

The  question  was,  whether  a  verdict,  which  found  a  deed  in  hcee  verba, 
found  all  that  was  recited  in  the  deed.  It  was  holden  that  it  did  not. 
And  by  the  court, — If  it  should  be  holden,  that  a  verdict,  which  finds  a 
deed  in  hoec  verba  finds  all  that  is  recited  in  the  deed,  the  jury,  who  are 
sworn  to  find  the  truth,  would,  whenever  there  is  a  false  recital  in  a  deed, 
find  a  falsity.  It  has  been  observed,  that  if  a  deed  of  bargain  and  sale, 
wherein  the  consideration  money  is  recited  to  have  been  paid,  be  found, 
it  is  found  that  the  money  is  paid ;  but  the  observation  does  not  apply, 
it  not  being  in  such  case  found,  that  the  consideration  money  is  paid ; 
nor  is  it  necessary  that  this  should  be  found ;  for,  if  any  sum  of  money 
be  mentioned  in  a  deed  of  bargain  and  sale  as  the  consideration,  the  deed 
is  good,  although  the  money  have  not  been  paid. 
Freem.  529,  Blackmore  v.  Cumberford. 

The  panel  of  the  jury,  who  were  to  try  an  indictment  against  Willis, 
was  by  mistake  annexed  to  the  distringas  upon  an  indictment  for  the 
same  offence  against  Brown ;  and  the  panel  of  the  jury,  who  were  to  try 
an  indictment  against  Brown,  was  by  mistake  annexed  to  the  distringas 
upon  an  indictment  for  the  same  offence  against  Willis.  The  verdicts 
found  in  both  cases  were  holden  to  be  bad;  because  they  were  found  by 
juries,  who  had  not  authority  to  try  the  indictment. 

1  Barnard.  108,  Rex  v.  Willis  and  Brown  ;  Cro.  Ja.  396. 

It  is  in  the  general  true,  that  if  the  jury  do  not,  where  damages  or 
costs  ought  to  be  assessed,  assess  either,  or  both,  as  the  case  may  require, 
the  verdict  is  bad. 

Trial  per  Pais,  259. 

In  an  action  of  annuity,  the  jury  found,  that  so  much  of  the  annuity  as 
the  plaintiff  claimed  was  in  arrear ;  but  they  did  not  assess  either  damages 
or  costs.  The  verdict  was  holden  to  be  defective :  and  it  was  likewise 
holden,  that  the  defect  could  not  be  made  good,  by  awarding  a  writ  of  in- 
quiry to  ascertain  the  damages  and  costs.  But  if  in  a  case,  wherein  da- 
mages, or  costs,  or  both,  ought  to  be  assessed,  the  jury  omit  to  assess 
either,  or  both,  as  the  case  may  require,  it  is  in  the  power  of  the  plaintiff 
to  make  the  verdict  good,  by  releasing  the  damages,  or  costs,  or  both. 

2  Lill.  Abr.  798. 

||  The  rule,  as  laid  down  in  Cheyney's  case,  is,  that  where  the  court 
ought  ex  officio  to  inquire  of  any  thing  upon  which  no  attaint  lies, (a)  the 
omission  of  it  may  be  supplied  by  writ  of  inquiry :  but  in  all  cases  where 
any  point  is  omitted,  whereof  attaint  lies,  it  shall  not  be  supplied  by  writ 
of  inquiry ;  and,  accordingly,  where,  in  an  action  for  libel,  the  defendant 
pleaded  the  general  issue,  and  eight  special  pleas  of  justification,  and  the 
jury  at  the  trial  found  a  verdict  for  the  plaintiff  on  the  general  issue  and 
two  of  the  special  pleas,  without  assessing  damages,  and  for  the  defendant 
on  the  other  pleas  ;  and  the  court,  on  motion  to  enter  up  judgment  for  the 
plaintiff  non  obstante  veredicto,  decided  that  the  latter  pleas  were  ill,  and 
awarded  a  writ  of  inquiry  to  assess  the  damages,  and  final  judgment  was 
entered  thereon  in  the  King's  Bench,  the  Court  of  Exchequer  Chamber, 
on  a  writ  of  error,  reversed  the  judgment  as  to  the  award  of  the  writ  of 
inquiry  and  final  judgment  thereon,  and  remitted  the  record  to  the  King's 
Bench,  with  a  direction  for  that  court  to  award  a  venire  de  novo  to  try 

Vol.  X.— 46  2  H 


362  VERDICT. 

(Z)  Things  not  comprised  in  the  foregoing  Heads. 

the  general  issue,  and  issue  joined  on  the  two  special  pleas  found  for  the 

plaintiff;   holding  the  verdict  on   these   pleas  to  be   void,   because   no 

damages  had  been  assessed. 

Cheyney's  Ca.  10  Co.  118  a;  Clement  v.  Lewis,  3  Bro.  &  Bing.  297  ;  S.  C.  in  B. 
R.,  3  Barn.  &  A.  702.  (a)  The  proceedings  by  attaint  are  abolished  by  the  jury  act, 
6  G.  4,  c.  50,  I  60.  ^ 

The  declaration  in  an  action  of  trespass  charged  the  selling  of  the  plain- " 
tiff's  goods.  The  defendant  pleaded  that  the  goods  which  he  had  dis- 
trained for  rent  in  arrear,  were,  pursuant  to  the  direction  of  the  2  W.  & 
M.  c.  5,  appraised  by  two  persons  sworn  by  the  headborough,  and  that 
the  surplus  of  the  money  for  which  they  were  sold  was,  after  deducting 
the  rent  and  charges  of  the  distress,  left  in  the  hands  of  the  constable. 
The  plaintiff  replied,  De  injurid  sud  propria  absque  tall  causa.  Issue 
being  joined  upon  the  replication,  a  verdict  was  found  for  the  defendant. 
The  verdict  was  set  aside ;  a  verdict  was  ordered  to  be  entered  for  the 
plaintiff;  and  a  writ  of  inquiry  was  awarded  for  ascertaining  the  damages : 
And  by  the  court, — The  present  verdict  ought  not  to  stand ;  because  it 
appears,  from  the  defendant's  own  showing,  that  the  selling  of  the  goods 
is  not  justifiable;  for,  as  the  constable  was  present,  the  headborough  had 
no  power  to  administer  the  oath  to  the  two  appraisers. 

Stra.  873,  Broom  v.  Bice.  ||In  this  case  the  proper  action  would  now,  it  seems,  be 
on  the  case  and  not  trespass,  according  to  11  G.  2,  c.  19,  \  19,  and  11  East,  395. || 

In  an  action  of  replevin,  the  defendant  avowed  the  taking  of  the  goods 
for  the  sum  of  thirty-six  pounds  in  arrear  for  rent.  The  plaintiff  as  to 
twelve  pounds,  parcel  of  the  thirty-six  pounds,  pleaded  payment ;  and  as 
to  the  residue  he  pleaded,  that  it  was  not  in  arrear.  Issue  being  joined 
upon  both  pleas,  the  first  issue  was  found  for  the  plaintiff,  the  second  for 
the  defendant.  Judgment  was  given  for  the  defendant :  And  by  the 
court, — If  one  issue  in  an  action  of  replevin  be  found  for  the  defendant, 
he  is  entitled  to  a  return  of  the  goods ;  and,  consequently,  the  finding  of 
another  issue  for  the  plaintiff  is  nugatory. 
Cro.  Ja.  473,  Dent  v.  Parso. 

In  an  indictment  upon  the  statute  against  stabbing,  tried  at  the  Old 
Bailey,  the  jury  found  a  special  verdict,  in  which  the  question  submitted 
to  the  court  was,  whether  the  prisoner  was  ousted  of  the  benefit  of  the 
clergy  ?  The  verdict  being  by  the  command  of  the  king  referred  to  the 
judges,  it  was  argued  before  them  at  Serjeant's  Inn.  Six  of  the  judges 
were  of  opinion  that  the  prisoner  was  ousted  of  the  benefit  of  the  clergy  ; 
but  the  other  five  were  of  a  contrary  opinion ;  and  the  recorder  was  like- 
wise of  opinion  that  the  prisoner  was  not  ousted  of  the  benefit  of  the 
clergy.  The  king  being  himself  of  the  same  opinion,  the  prisoner  had 
the  benefit  of  the  clergy. 

3  Lev.  254,  Rex  v.  Hunter;  ||1  East,  P.  C.  c.  5,  §  25.  Benefit  of  clergy  is  abo- 
lished by  stat.  7  G.  4,  c.  28,  §  G.|| 

[It  hath  been  laid  down,  that  the  court  will  not  alter  a  general  verdict, 
unless  it  clearly  appear  upon  the  face  of  it,  that  the  alteration  will  be 
agreeable  to  the  intention  of  the  jury ;  the  proper  remedy  in  such  case 
being  a  new  trial. 

Spencer  v.  Goter,  1  II.  Bl.  78. 

But,  where  it  appeared  from  the  affidavit  of  eight  of  the  jurors  that  the 
foreman  had  made  a  mistake  in  the  delivery  of  the  verdict,  and  had  re- 


VERDICT  363 

(Z)  Things  not  comprised  in  the  foregoing  Heads. 

ported  both  issues  to  be  found  for  the  defendant,  whereas  they  had  agreed  to 
find  one  of  them  for  the  plaintiff,  the  court  intimated  a  disposition  to  grant  a 
rule  to  show  cause,  (but  the  cause  was  not  afterwards  moved,)  why  the  verdict 
should  not  be  amended  and  set  right  according  to  the  truth  of  the  finding. 
Cogan  v.  Ebden,  1  Burr.  383.  ||But  that  the  court  cannot  receive  such  affidavits, 
see  Owen  v.  Warburton,  1  New  R.  329  ;  and  see  2  Stark.  Ill  ;  8  Taunt.  2G ;  3  Bro. 
&  B.  272.11 

When  a  considerable  time  has  elapsed  after  the  trial,  the  court  will  not 
amend  the  postea  by  increasing  the  damages  given  by  the  jury,  although 
all  the  jurors  join  in  an  affidavit,  stating  their  intention  to  have  been  to 
give  the  plaintiff  such  increased  sum,  and  that  they  conceived  the  verdict 
they  have  given  was  calculated  to  give  him  such  increased  sum.  The 
proper  time  for  such  an  explanation  is  at  the  trial. 

Jackson  v.  Williamson,  2  Term  R.  281.] 

{Where  a  verdict  is  taken  pro  forma  at  the  trial  for  a  certain  sum,  sub- 
ject to  the  award  of  an  arbitrator,  the  sum  afterwards  awarded  is  to  be 
taken  as  if  it  had  been  originally  found  by  the  jury  ;  and  the  plaintiff  is 
entitled  to  enter  up  judgment  for  the  amount,  without  first  applying  to 
the  court  for  leave  so  to  do. 

1  East,  401,  Lee  v.  Lingard  ;  3  Bos.  &  Pul.  244,  Borrowdale  v.  Hitchener :  1  Bos. 
&.  Pul.  97,  Higginson  v.  Nesbit ;  Ibid.  480,  Grimes  v.  Naish.j 

||  Nor  will  the  court,  after  a  lapse  of  eight  years,  and  where  the  judg- 
ment has  been  reversed  for  defect  in  one  count,  entertain  a  motion  for 
entering  the  verdict  on  particular  counts,  according  to  the  judge's  notes. 

Harrison  v.  King,  1  Barn.  &  A.  161. 

Nor  will  they  amend  a  verdict  according  to  the  notes  of  an  arbitrator, 
since  they  have  no  power  to  compel  such  notes  to  be  brought  before  them. 

1  Chitt.  R,  283.|| 

/3  It  is  misbehaviour  in  the  jury  to  take  refreshments,  after  they  are 
sent  out,  and  before  they  render  their  verdict,  without  leave  of  court ; 
but  the  verdict  will  nevertheless  stand,  unless  such  refreshments  were 
furnished  by  the  party  in  whose  favour  they  find. 

Harrison  v.  Rowan,  4  Wash.  C.  C.  R.  32. 

A  verdict  may  be  amended,  when  there  is  a  mistake  in  the  form. 
Jones  v.  Yanzandt,  2  M'Lean,  612. 

Where  there  are  several  counts  in  the  declaration,  some  of  which  are 
for  demands  not  within  the  jurisdiction  of  the  court,  and  the  jury  find  a 
general  verdict,  it  is  bad  for  the  whole. 

Kline  v.  Wood,  9  S.  &  R.  294. 

A  verdict  may  be  taken  after  the  death  of  a  sole  plaintiff,  if  the  death 
happens  after  the  first  day  of  the  circuit. 

Besas  v.  Merzereau,  18  Wend.  653. 

A  verdict  of  one  mill  is  a  nullity,  on  which  no  judgment  can  be  en- 
tered. 

Brown  v.  Smith,  3  Caines,  81. 

Where  the  jury  is  sworn  to  try  the  issue,  when  in  fact  there  is  no  issue 
joined,  the  verdict  has  no  effect. 
4  Bibb,  341. 

When  a  verdict  is  given  in  sterling  money,  and  the  rate  of  such  money 
in  United  States  currency  is  established  by  act  of  Congress,  it  is  the 


364  VISNE  OR  VENUE. 

(B)  In  what  Cases  Venue  is  necessary. 

duty  of  the  court  to  reduce  the  sum  to,  and  record  it  in  United  States 
money. 

Beal  v.  M'Kiernan,  8  La.  R.  572. 

After  a  verdict,  it  is  too  late  to  object  that  the  jury  process  has  been 
altered  without  proper  authority,  being,  at  most,  it  seems,  an  irregularity. 

Dubois  v.  Keat,  8  Ad.  &  Ell.  485,  n. 

When  the  plaintiff  succeeds  in  trover  only  as  to  part  of  his  claim,  the 
defendant  has  a  right  to  have  the  verdict  entered  distributively. 

Williams  v.  Great  Western  Railroad  Company,  1  Dowl.  N.  S.  lG.gf 


VISNE  OR  VENUE. 


(A)  Venue,  what. 

(B)  In  what  Cases  Venue  is  necessary. 

(C)  How  the  want  of  a  Venue  may  be  aided. 

(D)  What  deemed  a  proper  laying  of  the  Venue:  ||And  whence  the  Venue  shall 

come.  || 

(E)  In  what  Cases  Venue  may  be  changed.     Wherein, 

1.  When  the  Motion  for  changing  the  Venue  must  be  made. 

2.  The  certainty  required  in  the  Affidavit  on  which  the  Motion  is  made. 

3.  Cases  in  which  the  Venue  cannot  be  changed. 


(A)  Venue,  what. 

The  venue,  in  Latin  vicinetum  or  visnetum,  is  the  place  from  whence  a 
jury  are  to  come  for  the  trial  of  causes,  which  is  generally  some  neighbour- 
ing place,  locus  quern  vicini  habitant,  from  whence  it  is  called,  vicinetum 
or  venue. 

(B)  In  what  Cases  Venue  is  necessary. 

The  most  general  rules  respecting  the  necessity  of  a  venue  are — That  a 
venue  is  necessary  in  all  cases  where  the  matter  is  traversable,  or  where 
it  affects  the  right  of  the  action  ;  where  it  merely  regards  the  person,  or 
concerns  damages  only,  there,  a  venue  is  not  necessary.  But  these  rules 
will  be  better  understood  by  consideration  of  the  following  cases. 

In  an  action  on  the  ense,  the  defendant  pleaded  in  abatement,  that  the 
plaintiff  was  an  alien  enemy,  and  laid  no  venue:  and  on  demurrer  it  was 
adjudged  to  have  been  avcII  pleaded,  and  the  plaintiff  might  have  replied, 
that  he  was  born  in  England  generally.  But,  if  such  a  matter  is  pleaded 
in  bar,  it  must  be  pleaded  with  a  venue,  and  the  plaintiff  should  reply, 
that  he  was  born  in  such  a  place  in  England,  and  in  the  principal  case 
judgment  was  given,  quod  biUa  cassetur. 

2  Ld.  Raym.  124.'),  Pie  v.  Cooper.  The  reason  of  this  distinction  is,  because  that 
every  plea  concerning  the  person  which  is  pleaded  in  abatement  is  triable  where  the 
action  is  brought ;  but,  where  such  plea  is  pleaded  in  bar  of  the  action,  the  venue  shall 
be  alleged,  because  such  plea  is  not  to  the  person  but  to  the  right.  2  Ld.  Raym.  853  •, 
West  v.  Sutton. 


I 


VISNE    OR    VENUE.  365 

(B)  In  what  Cases  Venue  is  necessary. 

pA  plea  in  bar,  admitting  the  note  declared  on,  cannot  depart  from 
the  venue  in  the  declaration,  and  need  not  therefore  give  one,  ut  semb. 
Furman  v.  Haskin,  2  Gaines,  370. £f 

Matters  touching  the  person,  as  privilege  of  attorney,  may  be  pleaded 
without  a  venue,  and  be  tried  where  the  writ  is  brought. 
2  Ld.  Raym.  1172,  1173,  Scawen  v.  Garret 

In  covenant  against  one  as  assignee,  there  is  no  need  of  laying  any 
enue,  because  an  assignment  is  always  intended  to  be  made  on  the  lands 

assigned. 
Per  cur.  Carth.  256,  Huckle  v.  Wye. 

|J  In  a  plea  in  abatement  that  another  is  not  joined  as  defendant,  a 
venue  is  unnecessary. 
Neale  v.  De  Garay,  7  Term  R.  243  ;  1  Will.  Saund.  8  a;  Steph.  on  Plead.  306. jj 

But  a  consideration  executory  is  traversable,  and  therefore  a  venue 

must  be  laid. 

Cro.  Eliz.  880,  The  Lady  Shandos  v.  Simpson. 

Where  the  judgment  is  upon  a  nil  elicit,  the  want  of  a  venue  is  not 
material  to  set  it  aside,  because  the  inquiry  is  not  to  be  of  any  thing  be- 
sides damages,  which  may  be  inquired  by  any  jurors  in  the  county. 

1  Lutw.  235,  Remington  v.  Tailor. 

||  Where  a  request  by  the  plaintiff  is  necessary  to  be  alleged,  and  it  is 
alleged  without  a  venue,  (there  being  a  general  venue  in  a  preceding  part 
of  the  declaration,)  the  omission  cannot  be  taken  advantage  of  in  arrest 
of  judgment,  since  the  stat.  4  Ann.  c.  16,  §  1 ;  for  it  is  matter  of  form 
objectionable  only  on  special  demurrer;  and  this  although  the  judgment 
passed  by  default,  on  which  an  inquiry  was  executed. 

Bowdell  v.  Parsons,  10  East,  359.  || 

[In  debt  for  goods  sold  and  delivered,  the  plaintiff  declared  that  the 
defendant,  at  Westminster  in  the  county  of  Middlesex,  was  indebted  to 
him  in  a  certain  sum  for  goods  sold  and  delivered,  but  alleged  no  express 
contract,  or  place  where  the  contract  was  made. 

Emery  v.  Fell,  2  Term  R.  30. 

On  a  special  demurrer  for  these  causes,  the  court  held  the  contract  and 
venue  well  laid. 

In  a  replication  to  a  plea  of  ne  ungues  accouple  in  a  writ  of  dower, 
alleging  a  marriage  in  Scotland,  it  is  not  necessary  to  state  by  way  of 
venue  that  the  marriage  was  had  at  any  place  in  England.  In  point  of 
substance,  the  question  on  the  marriage  in  Scotland  arising  incidentally 
in  a  suit  in  dower,  of  which  the  court  have  original  jurisdiction,  is  for  the 
purpose  of  .the  cause  within  their  jurisdiction,  without  the  assistance  of  a 
fiction ;  and  the  venue  for  the  mere  purpose  of  trial,  being  necessarily 
the  venue  laid  in  the  declaration,  the  inserting  it  in  the  replication  would 
be  nugatory ;  and  the  want  of  it,  therefore,  cannot  be  taken  advantage 
of  even  on  a  special  demurrer. 

Ilderton  v.  Ilderton,  2  II.  Bl.  145.] 

pin  Massachusetts,  a  venue  is  required,  and  a  declaration  without  one 
is  bad,  on  special  demurrer. 

Briggs  v.  Nantucket  Bank,  5  Mass.  94. 

But  the  venue  in  the  margin,  where  no  venue  is  laid  in  the  declaration, 
is  sufficient. 

State  v.  Post,  9  Johns.  81.£/ 

2h2 


366  VISNE    OR    VENUE. 

(C)  How  the  want  of  a  Venue  may  be  aided. 

It  is  a  general  principle,  that  the  want  of  a  venue  is  only  curable  by 
such  plea  as  admits  the  fact  for  the  trial  whereof  it  was  necessary  to  lay 
a  venue,  or  by  a  verdict. 

6  Mod.  222,  Boisloe  v.  Bailey  ;  3  Salk.  381,  Anon. 

Thus,  the  want  of  a  venue  is  aided  by  pleading  over :  as,  where  in  tres- 
pass the  defendant  pleaded  a  submission  to  an  award,  and  that  an  award- 
was  made,  which  he  had  performed,  but  laid  no  venue  where  the  per- 
formance was.  The  plaintiff  replied  another  award,  and  the  defendant 
tendered  issue  upon  it,  whereupon  plaintiff  demurred.  Holt,  C.  J.,  said, 
that  the  want  of  a  venue  was  aided  by  the  pleading  over. 
2  Ld.  Ilayni.  1039,  Purslow  v.  Baily. 

So,  in  debt  upon  bond,  though  no  venue  is  laid  where  the  bond  was 
made,  yet,  if  the  defendant  pleads  a  release,  this  admits  the  bond,  and 
aids  the  want  of  a  venue;  per  Holt,  C.  J.     But  if  defendant  had  de- 
murred, the  want  of  a  venue  had  been  ill. 
2  Ld.  Rayra.  1039,  Purslow  v.  Baily. 

By  the  16  &  17  Car.  2,  c.  8,  the  want  of  a  venue  is  aided  after  verdict ; 
and  this  in  cases  not  only  where  there  is  a  wrong  venue,  but  also  where  the 
cause  is  tried  in  a  wrong  county,  as  appears  from  the  cases  in  the  margin. 

1G  &  17  Car.  2,  c.  8 ;  1  Saund.  246,  Craft  v.  Boito;  S.  C,  Raym.  181,  by  the  name 
of  Craft  v.  Winter.  And  it  is  there  added,  that  the  defendant  might  have  demurred 
upon  it.     [|  See  Mayor  of  London  v.  Cole,  7  Term  R.  583. || 

||  But  where  in  ejectment  for  lands  in  Cardiganshire  the  venue  was 
awarded  out  of  Shropshire,  upon  a  suggestion  of  its  being  the  next  Eng- 
lish county,  the  court,  after  a  verdict  for  the  plaintiff,  arrested  the  judg- 
ment on  the  ground  of  a  mistrial,  Herefordshire  being  the  next  adjoining 
English  county  to  South  Wales ;  although  it  appeared  that  Shropshire 
was  in  fact  nearer  to  the  lands  in  question,  and  the  cause  might  be  more 
conveniently  tried  there  than  in  Herefordshire. 

Ooodright  v.  Williams,  2  Maule  &  S.  270. 

But  the  court  in  such  case  will  not  set  aside  the  verdict  for  a  mistrial, 
the  question  being  upon  the  record. 

Ambrose  v.  Rees,  11  East,  370.  || 

(D)  What  deemed  a  proper  laying  of  the  Venue :  ||  And  whence  the  Venue  shall  come.H 

Many  niceties  which  were  formerly  to  be  observed  with  respect  to  lay- 
ing the  venue,  are  now  removed  by  the  4  &  5  Ann.  c.  16,  which  enacts, 
"That  every  venire  facias  for  the  trial  of  any  issue  in  any  action  or  suit, 
shall  be  awarded  of  the  body  of  the  proper  county  where  such  issue  is 

triable." 

4  &  5  Ann.  e.  16  ;  and  see  24  G.  2,  c.  18,  whioh  extends  this  act  to  trials  of  issues 
on  penal  statutes. 

For  example,  the  venue  in  the  declaration  was  laid  at  Leek,  and  not  at 
Leek  in  the  county  aforesaid.  Defendant  demurred,  and  showed  the 
want  of  a  proper  venue  for  cause;  plaintiff  joined  in  demurrer;  and  upon 
argument  the  court  gave  judgment  for  the  plaintiff.  It  was  held  suffi- 
cient, according  to  the  course  of  the  court,  to  lay  the  venue  at  Leek, 
which  has  reference  to  the  county  in  the  margin ;  and  since  by  act  of 
parliament  the  venire  facias  is  to  be  awarded  de  corpore  comitatus,  it  is 
not  necessary  that  any  particular  place  in  the  county  be  laid. 

Barnes,  481,  Spooner  v.  Mihvard. 


VISNE  OR  VENUE.  367 

(D)  What  deemed  a  proper  laying  of  the  Venue,  &c. 

pin  an  action  of  slander,  the  declaration  was  entitled  Dauphin  county, 
ss.  It  stated  that  the  defendant  on  the  5th  of  July,  1814,  at  Cumber- 
land county,  to  wit,  at  the  county  of  Dauphin  aforesaid,  in  a  certain  dis- 
course which  he  then  and  there  had,  of  and  concerning  the  plaintiff,  and 
of  and  concerning  the  murder  of  a  certain  J  S,  who  before  that  time  was 
killed  and  murdered,  he,  the  said  defendant  then  and  there  uttered,  &c. 
Held,  good  after  verdict. 

Wills  v.  Church,  5  S.  &  It.  190.0 

||  In  a  declaration  in  assumpsit  it  is  enough  to  allege  the  county  for 
venue  without  any  parish. 
Ware  v.  Boydell,  3  Maule  &  S.  148.  || 

It  is  a  general  rule  likewise,  that  the  county  in  the  margin  of  a  decla- 
ration will  help  the  venue  laid  in  the  body  of  it,  but  will  not  hurt  it,  as 
appears  from  the  following  case  : 

In  the  margin  stood  the  word  Norfolk,  in  the  body  of  the  declaration 
the  venue  was  laid  at  the  city  of  Norwich,  in  the  county  of  the  same  city 
throughout.  The  plaintiff  executed  a  writ  of  inquiry  of  damages,  di- 
rected to  the  sheriffs  of  the  city  of  Norwich.  Had  no  venue  been  laid  in 
the  body  of  the  declaration,  reference  must  be  had  to  the  margin  ;  but 
where  a  proper  venue  is  laid  in  the  body  of  the  declaration,  the  word  in 
the  margin  shall  not  vitiate  it,  for  it  is  a  jeofail  which  is  helped  by  the 
4  &  5  Ann.  c.  16.(a) 

Barnes,  483,  Howse  v.  Haselwood.     ||(o)  See  10  East,  359.  || 

[In  debt  upon  bond  by  an  administrator,  the  declaration  alleged,  that 
administration  was  granted  by  the  Bishop  of  Lichfield  and  Coventry,  and 
the  venue  in  the  margin  was  laid  in  London,  but  the  bond  was  stated  to 
be  made  at  Derby,  which  is  within  the  diocese.  The  plaintiff  demurred 
generally.  The  court  held  it  well  enough  on  a  general  demurrer,  though 
there  possibly  might  have  been  some  doubt  on  a  special  demurrer.  The 
venue  being  laid  at  Derby  in  the  body  of  the  declaration,  the  addition  of 
London  in  the  margin  did  not  vitiate  it. 

Mellor  v.  Barber,  3  Term  E.  387. 

Where  the  proper  venue  is  stated  in  the  margin  of  the  declaration,  and 
the  venue  in  the  body  of  the  declaration  is  laid  at  D,  without  showing  in 
what  county  D  is,  or  at  D  in  the  county  aforesaid,  when  the  next  antece- 
dent county  is  S,  in  either  of  these  cases  the  reference  shall  be  to  the 
venue  in  the  margin. 

Sutton  v.  Fenn,  3  Wils.  339  ;  Shirley  v.  Sackville,  Cro.  Eliz.  4G5  ;  Quarles  v. 
Searle,  Cro.  Ja.  96.] 

It  is  to  be  observed,  however,  that  in  all  real  actions  the  venue  ought 
to  be  laid  in  that  county  where  the  thing  is  for  which  the  action  is  brought ; 
for  being  local,  it  is  only  triable  there  ;  whereas  matters  which  are  transi- 
tory may  be  tried  in  any  county,  as  will  more  particularly  appear  when 
we  come  to  consider  in  what  cases  the  venue  may  be  changed. 
2  Lill.  Abr.  782. 

So  likewise,  in  an  action  of  debt  brought  for  rent  due  for  land  upon  a 
lease  under  hand  and  seal,  where  there  is  no  privity  of  contract,  as  against 
an  assignee,  &c,  the  venue  must  not  be  laid  out  of  the  county  where  the 
land  lies  for  which  the  rent  is  due ;  for  the  action  is,  for  want  of  privity 
of  contract,  become  a  local  action,  ratione  terras,  out  of  which  the  rents 
are  issuing,  and  not  transitory  ;  but  where  the  action  is  brought  by  the 


368  VISNE  OR  VENUE. 

(D)  What  deemed  a  proper  laying  of  the  Venue,  &c. 

lessor  against  the  lessee,  there  being  privity  of  contract,  the  action  is 
transitory,  and  the  demise  may  be  laid  to  be  made  in  any  other  county 
than  that  where  the  land  lies. 

2  Lill.  Abr.  782,  783  ;  1  Wils.  1C5.  ||  And  the  assignee  of  the  reversion  may  bring 
debt  or  covenant  against  the  lessee  in  any  county  ;  for  the  privity  of  contract  is  trans- 
ferred by  32  II.  8  ;  1  Will.  Saund.  241  d.|| 

With  respect  to  criminal  cases,  it  is  ordained  by  the  stat.  21  Jac.  1,  c.~ 
4,  that  all  informations  on  penal  statutes  shall  be  laid  in  the  counties 
where  the  offences  were  committed.     And  upon  this  statute  the  following 
points  have  been  adjudged. 

In  an  information  on  the  5  &  6  Ed.  6,  c.  14,  for  buying  and  selling 
live  cattle  contrary  to  the  statute,  it  was  insisted,  that  the  information 
ought  to  have  been  brought  in  Norfolk  where  the  offence  was  committed, 
and  not  in  Middlesex.  And  Holt,  C.  J.,  said,  that  ten  judges  had  agreed 
in  the  following  resolutions  : — 

First,  That  the  21  Jac.  1,  c.  4,  does  not  extend  to  any  offence  created 
since  the  statute,  so  that  prosecutions  on  subsequent  penal  statutes  are 
not  restrained  thereby ;  but  that  statute  is,  as  to  them,  as  it  were  repealed 
pro  tanto. 

1  Salk.  372,  373,  The  King  v.  Gaul. 

Secondly,  That  all  informations  and  popular  actions  on  penal  statutes 
made  before  that  act,  must  by  force  of  21  Jac.  1,  c.  4,  be  laid,  brought, 
and  prosecuted  in  the  proper  county  where  the  fact  was  done.     Again, 

An  information  was  laid  on  the  12  Car.  2,  c.  82,  for  carrying  wool  on 
board  in  order  to  export  it ;  and  it  was  objected,  that  it  ought  to  have 
been  laid  where  the  offence  was  committed.  But  the  Lord  Chief  Baron 
said,  that  the  statute  Jac.  1,  does  not  extend  to  any  offence  created  since  ; 
and  therefore  it  must  now  stand  on  the  statute  Car.  2  :  there  are  no  nega- 
tive words  in  it,  so  it  does  not  take  away  the  prerogative  of  the  crown  to 
lay  it  any  where,  and  this  at  the  common  law  would  be  transitory  ;  and 
he  overruled  the  objection. 

Bunb.  236,  Attorney-General  v.  Browse.  But  see  4  Inst.  173,  where  Lord  Coke,  in 
his  comment  on  this  act,  says,  that  it  is  but  in  affirmance  of  the  true  institution  of  the 
common  law  :  for  vicini  vicinorum  facta  prcesumaniur  scire. 

||  The  offence  of  selling  coals  as  of  a  different  description  from  what  they 
really  are,  contrary  to  the  3  G.  2,  c.  26,  §  4,  is  complete  in  the  county 
where  the  coals  are  delivered,  and  not  where  they  are  contracted  for;  and 
the  venue  must  be  laid  in  the  former  county.  But  the  offence  of  not  justly 
measuring  such  coal  according  to  the  thirteenth  section  of  the  act,  is  com- 
plete at  the  place  where  the  coals  are  kept  for  sale  ;  at  which  place  the 
bushel  of  Queen  Anne  is  required  to  be  kept  and  used  for  measuring  coals. 
Butterfield  q.  i,  v.  Windle,  4  East,  R.  385. 

In  an  action  of  debt  on  the  pilot  act,  52  G.  3,  c.  39,  §  34,  for  penal- 
ties for  continuing  in  charge  of  vessels  without  being  licensed,  and  after 
a  pilot  had  offered,  the  venue  must  be  laid  in  the  county  where  the  of- 
fence is  committed. 

Barber  v.  Tilson,  3  Maulo  &  S.  429. 

And  so  also  in  debt  on  the  stat.  43  G.  3,  c.  84,  §  12,  against  a  parson 
for  the  penalty  for  wilfully  absenting  himself  from  his  benefice.  Aliter  in 
an  information  on  24  G.  2,  c.  19,  for  being  both  a  tanner  and  shoemaker. 

Whitehead  v.  Wynn,  5  Maule  &  S.  427  ;  3  Anst.  871. 


VISNE    OR    VENUE.  369 

(D)  What  deemed  a  proper  laying  of  the  Venue,  &c. 

Though  a  penal  action  be  removed  out  of  the  proper  county  into  an- 
other for  trial,  yet  the  cause  of  action  must  still  be  proved  to  have  hap- 
pened in  the  proper  county  where  the  venue  is  laid. 

Robinson  v.  Garthwaitc,  9  East,  II.  296. 

A  scire  facias  on  a  recognisance  of  bail,  taken  in  open  court  in  the 
King's  Bench,  is  properly  suable  in  Middlesex,  where  the  record  is, 
though  all  the  previous  proceedings  were  in  London ;  and  it  seems  that 
it  could  not  be  sued  elsewhere  than  in  Middlesex. 

Coxeter  v.  Burke,  5  East,  R.  461 ;  and  see  Hartley  v.  Hodson,  2  Moo.  66. || 

It  is  ordained  by  the  statute  21  Jac.  1,  c.  12,  that  all  actions  brought 
against  any  officers  of  justice  shall  be  laid  in  the  county  where  the  fact 
was  committed. 

For  the  construction  on  this  act,  see  Yaughan,  113,  and  sequent. 

It  is  observable,  however,  that  the  action  is  only  confined  to  the  pro- 
per county  where  the  officer  is  acting  in  execution  of  his  office. 
1  Stra.  446. 

[The  9  G.  2,  c.  35,  §  26,  which  enacts,  that  prosecutions  for  assaults 
on  revenue  officers  may  be  tried  in  any  county,  is  confined  to  assaults  on 
them  merely  as  officers,  and  whilst  they  are  officiating  as  such.  And, 
therefore,  where  a  defendant  had  been  acquitted  on  all  the  counts  in  the 
indictment,  which  charged  him  with  assaulting  the  prosecutor,  a  revenue 
officer,  in  the  exercise  of  his  office,  and  found  guilty  only  on  that  which 
charged  him  with  a  common  assault,  judgment  was  arrested,  though  the 
prosecutor  in  that  count  was  described  to  be  an  excise  officer,  the  offence 
being  laid  in  Surry,  and  the  venue  in  Middlesex. 

4  Term  E.  490,  Ilex  v.  Cartwright. 

If  an  act  of  parliament  directs  that  officers  shall  be  sued  for  any  act 
they  may  do  under  that  act  in  the  county  where  the  fact  is  committed, 
and  a  subsequent  act  gives  those  officers  several  of  the  privileges  conferred 
by  the  preceding  act,  but  does  not  require,  as  the  preceding  act  does, 
that  the  action  shall  be  brought  in  the  county  where  the  fact  Avas  com- 
mitted, this  privilege  will  not  attach  upon  the  subsequent  act,  unless  there 
be  a  reference  from  the  one  act  to  the  other,  so  as  to  incorporate  them. 

Bazing  v.  Skelton,  5  Term  R.  16.] 

The  general  rule  of  law  as  laid  down  by  Lord  Coke  is,  that  every  trial 
shall  be  out  of  that  town,  parish,  or  hamlet,  or  place  known  out  of  the 
town,  &c,  within  which  the  matter  of  fact  issuable  is  alleged,  that  is 
most  certain  and  nearest  thereunto,  the  inhabitants  whereof  may  have 
the  better  and  more  certain  knowledge  of  the  fact.  But  the  learning  on 
this  head  is  greatly  abridged  by  the  statute  4  &  5  Ann.  c.  16,  and  24  G. 
2,  c.  28,  which  are  taken  notice  of  under  the  last  head.  For,  by  these 
statutes  it  is  enacted,  that  every  venire  facias  for  the  trial  of  any  issue 
in  any  action  or  suit,  or  upon  any  penal  statute,  shall  be  awarded  of  the 
body  of  the  proper  county  (a)  where  such  issue  is  triable. 

1  Inst,  125  a ;  4  &  5  Ann.  c.  16  ;  24  G.  2,  c.  18.  Before  these  statutes,  where  the 
venue  could  not  come  from  a  vill,  hamlet,  or  lieu  conns,  there  it  might  have  been  de 
corpore  com  Hat  as.  \\(a)  And  therefore  it  is  now  sufficient  to  state  the  county  gener- 
ally in  the  declaration,  without  any  place.     Ware  v.  Boydell,  3  Maul.  &  S.  148. || 

It  may  therefore  be  sufficient  to  consider,  out  of  what  county  the  visne 
shall  come,  where  part  of  the  matter  to  be  tried  is  part  in  one  county  and 
part  in  another. 

2  Lill.  Abr.  786. 

Vol.  X.— 47 


370  VISNE    OR   VENUE. 

(E)  In  what  Cases  the  Venue  may  be  changed. 

This  will  depend  on  the  gist  of  the  issue,  as  may  be  collected  from  the 
following  cases: 

An  action  was  brought  for  goods  esloined,  and  received  by  the  defend- 
ant, and  the  tort  of  the  esloining  is  alleged  in  one  county,  and  the  receipt 
of  them  by  the  defendant  in  another  county,  and  they  are  at  issue  if  he 
received  them  or  not :  there  the  visne  shall  be  of  the  county  where  the 
receipt  is  supposed. 

Bro.  Visne,  pi.  94. 

In  trespass,  the  defendant  assumed  in  London  to  cure  the  wound  of 
the  plaintiff,  &c,  and  applied  contrary  medicines  in  Middlesex,  by  which 
the  plaintiff  was  impaired.  Per  Thirn, — If  they  take  issue  upon  the 
assumpsit,  visne  shall  be  of  London ;  and  if  of  the  contrary  medicines, 
then  of  Middlesex. (a) 

Bro.  Visne,  pi.  117.  It  may  be  added  as  a  general  rule,  that  in  all  cases  where  the 
action  is  founded  upon  two  things,  both  of  which  are  material  or  traversable,  and  the 
one  without  the  other  will  not  maintain  the  action,  there  the  plaintiff  may  bring  the 
action  in  which  of  the  counties  he  will.  7  Rep.  2  a,  Bulwer's  case  ;  [2  Term  K.  238, 
S.  P.]  ||  Mayor  of  London  v.  Cole,  7  Term  R.  583,  ace.  {a)  But  now  the  general  issue, 
non  assumpsit,  would  be  pleaded,  putting  in  issue  the  whole  declaration ;  and  the 
matter  being  transitory,  the  cause  would  be  tried  in  the  county  where  the  plaintiff  had 
laid  his  vcnue.\\ 

||  In  case  where  the  injury  is  to  the  soil,  the  venue  must  be  laid  in  the 
county  where  the  injury  arises ;  as  where  a  trench  cut  in  the  county  of 
N,  overflowed  and  damaged  the  plaintiff's  lands  in  the  county  of  W,  and 
an  act  required  the  action  to  be  brought  where  the  cause  of  action  arose, 
it  was  held  the  action  might  be  brought  in  W. 

Sutton  v.  Clarke,  6  Taunt.  29  ;  and  see  Warren  v,  Webb,  1  Taunt,  379. || 

In  some  cases,  however,  the  venue  shall  come  out  of  both  counties. 
For  which,  see  Bro.  Confess,  and  Avoid,  pi.  30,  or  38  H.  G,  p.  25,  where 
the  case  is  more  full  and  correct. 

But  where  both  counties  cannot  join,  there,  it  is  said,  it  may  be  tried 
in  either  county. 

2  Roll.  Abr.  603,  pi.  8. 

||  In  an  action  on  the  stat.  1  &  2  Phil.  &  Mar.  c.  12,  for  driving  a  dis- 
tress out  of  the  hundred  into  another  county,  the  venue  may  be  laid  in 
either  county. 

Pope  v.  Davis,  2  Taunt.  252 ;  and  see  Cro.  Eliz.  646. 

But  where  an  usurious  contract  is  made  in  one  county,  and  the  money 
received  in  another,  here  the  venue  in  an  action  for  penalties  must  be 
laid  in  the  county  where  the  money  is  received ;  for  there  is  no  offence 
in  the  county  where  the  mere  contract  is  made. 

Pearson  v.  M'Gowran,  3  Barn.  &  C.  700  ;  and  see  Rex  v.  Buttery,  cited  4  Barn.  & 
A.  179.|| 

(E)  In  what  Cases  the  Venue  may  be  changed. 

TriE  general  principles  with  respect  to  the  changing  of  the  venue  may 
be  found  under  Actions  local  and  transitory  (B),  vol.  i.  It  may  be 
necessary  however  to  consider  farther, 

1.    When  the  Motion  for  changing  the  Venue  must  be  made. 

It  ha3  been  held  that  the  defendant  must  move  to  change  the  venue  be- 
fore  he  pleads ;  and  that  the  plaintiff  in  like  manner  must  move  to  dis- 


VISNE  OR  VENUE.  3.1 

(E)  In  what  Cases  the  Venue  may  be  changed. 

charge  the  rule,  on  his  undertaking  to  give  material  evidence,  before 
defendant  replies. 
2  Stra.  858,  Dickenson  v.  Fisher. 

But  a  judge's  summons  or  order  for  time  to  plead,  shall  be  no  bar  to 
a  motion  for  changing  the  venue. 
Per  cur.  Barnes,  489,  Dennis  v.  Fletcher. 

So  likewise,  where  after  a  rule  to  show  cause  why  the  venue  should  not 
be  changed,  and  before  it  was  made  absolute,  the  defendant  by  inadvert- 
ence put  in  a  plea,  yet  the  court  held  that  this  was  no  waiver  of  the 
rule ;  and  they  allowed  defendant  to  withdraw  his  plea  on  payment  of 
costs,  and  made  the  rule  absolute  for  changing  the  venue. 
Barnes,  492,  Herbert  v.  Flower  et  al. 

Neither  is  a  judge's  order  for  an  imparlance  any  bar  to  a  motion  for 
changing  the  venue. 

Barnes,  467,  Blackstock  v.  Payne. 

[The  venue  may  be  changed,  after  an  order  for  time  to  plead,  though 
upon  the  terms  of  pleading  issuably ;  but  not  after  an  order  for  time  to 
plead,  where  the  terms  are  to  plead  issuably  and  take  short  notice  of 
trial  at  the  first  sittings  in  London  or  Middlesex,  because  there  a  trial 
would  be  lost. 

Cowp.  511 ;  ||7  Term  R.  698  ;||  Barnes,  493  ;  1  Wils.  245,  contra.  ||See  Tidd's  Prae. 
659,  (8th  edit.)  || 

The  plaintiff  was  allowed  to  bring  back  the  venue  to  the  county  where 
it  was  originally  laid,  upon  the  usual  undertaking,  though  the  cause  had 
gone  down  to  trial,  and  been  a  remanet  for  want  of  jurors. 

Cowp.  409,  Brucshaw  v.  Hopkins.] 

|3  When  the  plaintiff  wishes  to  change  the  venue,  he  must  move  to 
amend,  and  a  suggestion  must  be  entered  on  the  record. 
Lee  v.  Kaighn,  Cose,  283. 

The  motion  will  not  be  changed,  if  the  motion  for  that  purpose  is  not 
made  until  after  issue  joined,  and  it  appears  that  the  plaintiff,  if  successful 
on  the  trial,  would  lose  a  term  in  entering  his  judgment,  should  the  motion 
be  granted. 

Lee  v.  Chapman,  11  Wend.  186. 

But  the  defendant  may  apply  to  have  the  venue  changed  after  issue 

joined,  provided  a  trial  has  not  been  lost,  and  it  will  occasion  no  delay. 

Delavan  v.  Baldwin,  3  Caines,  104 ;  Rent  v.  Dodge,  3  Johns.  447  ;  but  Wistan  v. 
Johnson,  Coxe,  260. gf 

2.  The  Certainty  required  in  the  Affidavit  on  which  the  Motion  is  made. 

With  respect  to  the  affidavit,  it  must  be  positive  and  certain.     It  is  not 

sufficient  that  it  be  affirmative,  but  it  must  also  contain  negative  words ; 

that  is,  it  is  not  enough  for  defendant  to  swear  that  the  cause  of  action, 

if  any,  did  arise  in  the  county  to  which  he  would  have  the  venue  changed, 

but  he  must  likewise  add,  that  it  did  not  arise  in  the  county  laid  in  the 

declaration,  or  elsewhere  out  of  the  county  to  which  he  would  have  the 

venue  changed. 

Barnes,  478,  Belshaw  v.  Porter.  The  words,  cause  of  action,  are  indispensably  ne- 
cessary, for  it  would  be  insufficient  to  swear  that  the  promises  in  the  declaration  were 
made  in  such  a  county.  Barnes,  477,  Cole  v.  Gouing ;  S.  P.,  2  Barnardist.  74,  White 
v.  Love,  [3  Term  K.  495.] 


372  VISNE  OR  VENUE. 

(E)  In  what  Cases  the  Venue  may  he  changed. 

Where  there  are  several  defendants,  the  affidavit  of  one  is  sufficient  to 
ground  a  motion  for  changing  the  venue. 

Barnes,  482,  Box  v.  Read.     ||See  as  to  the  affidavit,  Tidd's  Prac.  609,  (9th  edit.)|| 

8  Hearsay  evidence  is  insufficient  to  support  a  motion  to  change  the 
venue. 

Lee  v.  Kaighn,  Coxe,  283. 

The  special  circumstances  on  which  the  motion  is  founded  must  be 
made  out  by  the  affidavit. 

Ker  v.  Whitaker,  2  Penning.  514. 

It  is  not  required  that  the  venue  should  state  the  cause  of  action  is  not 
transitory ;  if  it  be  not  transitory,  it  should  be  shown  by  the  other  side. 
Baker  v.  Sleight,  2  Caines,  46. 

The  affidavit  of  the  defendant  to  change  the  venue  must  be  positive, 
if  he  swear  merely  to  his  belief,  it  will  not  be  sufficient. 
Franklin  v.  Underbill,  2  Johns.  374. 

Such  affidavit  must  be  direct  and  positive,  that  the  cause  of  action 
arose  in  another  county,  this  must  not  be  stated  argumentatively. 
Manning  v.  Downing,  2  Johns.  453. gf 

3.  Cases  in  which  the  Venue  cannot  he  changed. 

With  regard  to  the  cases  in  which  the  venue  cannot  be  changed,  though 
it  has  been  held  that  the  venue  may  be  changed  in  all  actions  of  a  transi- 
tory nature,  yet  there  are  divers  exceptions,  as  in  cases  of  privilege, 
specialty,  promissory  note,  or  bill  of  exchange,  ||  awards,  charter-parties 
of  affreightment,  unless  some  special  ground  be  laid. (a)  Aliter  in  actions 
on  policies  of  assurance. (b)\\  To  which  may  be  added,  that  even  in  the 
case  of  persons  privileged  in  this  respect,  such  as  barristers  or  attorneys, 
if  they  are  joined  in  an  action  with  unprivileged  persons,  they  cannot 
change  the  venue. 

Per  cur.  Barnes,  491,  Everest  v.  Sansum  ;  5  Taunt.  576  ;  1  Stra.  610,  Townsend  v. 
Duppa  et  al.  (a)  ||2  Bos.  &  Pul.  355  ;  7  Taunt,  300  ;  1  Term  R.  781 ;  3  Barn.  &  C. 
9,  552.  (b)  2  Term  It.  275  ;  7  Term  It.  205. ||  0For  cases  when  the  venue  will  not 
be  changed,  see  Low  v.  Hallet,  2  Caines,  374  ;  Gourley  v.  Shoemakers,  Colem.  103  ; 
Clinton  v.  Crosswell,  2  Caines,  245  ;  New  Windsor  Turnpike  v.  Wilson,  3  Caines, 
127  ;  Stoutenherg  v.  Logg,  2  Johns.  481 ;  Worthy  v.  Gilbert,  4  Johns.  492.gf 

8  In  an  action  of  covenant,  for  the  breach  of  covenant  of  seisin,  the 
venue  cannot  be  changed  to  the  county  where  the  lands  lie,  without  an 
affidavit  of  special  circumstances. 

Ward  v.  Holmes,  2  Ilalst.  171. 

The  venue  cannot  be  changed  after  issue  joined. 

Wistan  v.  Johnson,  Coxe,  260. 

The  venue  will  not  be  changed  on  the  application  of  one  defendant, 
when  there  are  several  defendants  in  a  cause. 

Sailly  v.  Ilutton,  6  Wend.  508.0 

Neither  is  the  venue  in  any  case  ever  changed  into  a  county  palatine. 
[j  The  venue  has  been  frequently  changed  into  a  county  palatine  ;  but  the 
courts  require  an  undertaking  from  defendant  not  to  assign  error  for  want 
of  an  original ;  and  in  the  C.  V>.  the  court  will  not  change  it,  if  inconvenient 
to  the  plaintiff,  nor  on  application  by  one  of  several  defendants. \\(a)    The 


VISNE  OR  VENUE.  373 

(E)  In  what  Cases  the  Venue  may  be  changed. 

court  have  likewise  refused  changing  it  into  Durham  :  and  have  also  re- 
jected a  motion  for  changing  it  from  Yorkshire  into  the  city  of  York. 

Barnes,  488,  Richardson  v.  Walker;  Barnes,  289,  Lewis  v.  Askarn  ;  Barnes,  4Sl  ; 
Craster  v.  Cockerell.  ||(o)  7  Term  R.  735  ;  1  AVils.  222  ;  1  Taunt.  120  ■  Ibid.  432  : 
5  Taunt,  87 ;  and  see  Ibid.  031 ;  4  Maule  &  S.  233  ;  7  Taunt.  400 ;  2  Chit.  R.  417, 
418;  Tidd's  Prac.  007,  (9th  edit.)|| 

[In  an  action  for  infringing  a  patent,  the  venue  cannot  be  changed 
from  Middlesex  to  another  county,  because  it  is  impossible  for  the  party 
applying  to  make  the  necessary  affidavit,  that  the  cause  of  action  arose 
wholly  in  such  other  county,  and  not  elsewhere,  it  being  manifest  that 
the  substratum  of  the  action,  namely,  the  patent,  is  at  Westminster. 

Cameron  v.  Gray,  0  Term  R.  303.] 

||  And  in  transitory  actions,  where  material  evidence  arises  in  two  coun- 
ties, the  venue  may  be  laid  in  either. 

2  Term  R.  275  ;  7  Term  R.  583. 

And  if  it  be  laid  in  a  third  county,  the  courts  will  not  change  it ;  for  the 
defendant  cannot,  in  such  case,  make  the  necessary  affidavit,  that  the 
cause  of  action  arose  in  a  particular  county,  and  not  elsewhere. 

7  Term  R.  205  ;  3  Bos.  &  Pul.  579 ;  3  Taunt.  404 ;  Tidd's  Prac.  652,  (8th  edit.) 

And  when  the  cause  of  action  arises  out  of  the  realm,  the  courts  will 
not  change  the  venue,  because  the  action  may  as  well  be  tried  in  the 
county  where  the  venue  is  laid,  as  in  any  other,  where  the  cause  of  action 
did  not  arise. 

Cowp.  170  ;  1  II.  Bl.  280 ;  1  Taunt,  259 ;  2  Taunt.  197  6  Taunt.  569  ;  4  East,  495  ; 
2  New  R.  397. 

Nor  in  an  action  for  a  libel,  written  in  one  county,  and  circulated  in 
another. 

1  Term  R.  571,  647 ;  1  Brod.  &  Bing.  299. 

But  it  may  be  changed  to  the  county  in  which  the  libel  was  both  writ- 
ten and  published. 

3  Term  R.  306. 

And  in  an  action  on  the  case  for  overturning  the  plaintiff  in  a  stage-coach, 
the  venue  may  be  changed  into  the  county  where  the  accident  happened. 

4  Taunt.  729. 

And  it  is  no  reason  against  changing  the  venue,  that  if  changed  the 
cause  is  likely  to  be  tried  by  persons  interested  in  the  question,  if  they 
are  likely  to  have  as  strong  an  interest  on  one  side  as  on  the  other. 

5  Taunt.  005. 

Though  the  courts,  in  general,  will  not  change  the  venue  when  it  is  laid 
in  the  proper  county,  yet  they  will  change  it  even  then  upon  a  special 
ground. 

1  Term  R.  781 ;  1  Bos.  &  Pul.  20,  425  ;  3  East,  329 ;  8  Taunt.  035  ;  Tidd's  Prac. 
655  ;  1  Chit.  R.  324. 

But  in  an  action  by  an  attorney  for  an  escape,  it  is  not  a  sufficient 
ground  for  deviating  from  the  general  rule  not  to  change  the  venue,  in 
such  case  that  the  witnesses  on  both  sides  reside  in  the  county  to  which 
the  venue  is  wished  to  be  changed. 

2  Marsh.  152. 

Though  the  courts  will,  in  general,  change  the  venue  where  it  is  not  laid 

21 


374  VOID   AND   VOIDABLE. 

(B)  What  Acts  are  absolutely  void. 

in  the  proper  county,  yet  if  an  impartial  or  satisfactory  trial  cannot  be  had 
there,  they  will  not  change  it ;  as,  in  an  action  for  words  spoken  of  a  jus- 
tice of  the  peace  by  a  candidate  on  the  hustings  at  a  county  election. 
Cowp.  510. 

And  in  order  to  avoid  delay,  the  courts  will  not  change  the  venue,  ex- 
cept by  consent,  or  upon  an  affidavit  of  merits,  into  the  city  of  Bristol  or 
Norwich,  (where  there  are  no  Lent  assizes,)  in  Michaelmas  or  Hilary 
term. 

Barnes,  481 ;  1  Wils.  138 ;  11  Price,  613  ;  sed  vide  1  Chit.  R.  334;  11  Price,  742. 
See  further  as  to  cases  where  the  venue  may  and  may  not  be  changed,  Tidd's  Prac. 
vol.  1,  c.  24,  (9th  edit,);  Archb.  Prac.  vol.  2,  p.  193, "(2d  edit.)|| 


VOID    AND   VOIDABLE. 


In  the  law,  some  acts  are  absolutely  void,  and  others  are  voidable  only ; 
for  the  better  understanding  whereof,  it  is  necessary  to  consider, 

(A)  The  Distinction  between  void  and  voidable. 

(B)  What  Acts  are  void ;  wherein,  of  the  Degrees  in  which  Acts  may  be  void,  as, 

1.  What  Acts  are  absolutely  void  as  to  all  Purposes. 

2.  What  void  as  to  some  Purposes  only. 

3.  What  as  to  some  Persons  only. 

4.  How  Acts  void  by  Operation  of  Law  may  be  made  good  by  subsequent  matter. 

(C)  What  Acts  are  voidable  only. 

(D)  How  voidable  Acts  may  be  made  good. 

(E)  How  they  may  be  avoided. 

(F)  By  whom  they  may  be  avoided. 


(A)  The  Distinction  between  void  and  voidable. 

A  thing  is  void  which  was  done  against  law  at  the  very  time  of  the 
doing  it,  and  no  person  is  bound  by  such  an  act ;  but  a  thing  is  only  void- 
able which  is  done  by  a  person  who  ought  not  to  have  done  it,  but  who 
nevertheless  cannot  avoid  it  himself  after  it  is  done ;  though  it  may  by 
some  act  in  law  be  made  void  by  his  heir,  &c. 

2  Lill.  Abr.  807.  [The  doctrine  in  the  text  as  to  voidable  acts  is  far  from  being 
universally  just.  It  does  not  hold  in  the  case  of  infants.  An  infant,  when  he  comes 
of  age  may  himself  avoid  a  voidable  act  done  by  him  in  his  infancy.]  /3See  Bouv.  L. 
1).  v.  Void;  Id,  v.  Voidable.^ 

(B)  What  Acts  are  absolutely  void. 

Acts,  it  is  said,  may  be  void  in  several  degrees,  according  to  the  par- 
ticular circumstances  of  the  case. 
Cart.  19,  Keite  v.  Clopton. 

It  will  be  proper,  therefore,  to  consider, 


VOID  AND  VOIDABLE.  375 

(B)  What  Acts  are  absolutely  void. 
1.    What  Acts  are  absolutely  void  as  to  all  Purposes. 
Bond  of  a  feme  covert  and  infant  are  void. 

Bro.  Obligation,  pi.  26.  This,  however,  with  regard  to  the  infant  must  be  under- 
stood with  some  restriction ;  for  if  an  infant  gives  a  bond  without  a  penalty  for  ne- 
cessaries, it  is  good  ;  and  the  reason  why  it  is  void,  if  with  a  penalty,  seems  to  be  that 
the  law  gives  validity  to  every  act  of  the  infant's  which  may  be  for  his  benefit ;  but 
it  cannot  be  presumed  to  be  for  his  benefit  to  enter  into  a  penalty.  Noy,  85,  Delaval 
v.  Clare ;  Cro.  Eliz.  920  ;  Ayliff  v.  Archdale,  S.  C. ;  Moor,  G'Jl ;  1  Inst.  172  a ;  1 
Roll.  Abr.  729 ;  1  Lev.  87,  Russell  v.  Lee  ;  ||  Fisher  v.  Mowbray,  8  East,  330  ;  Baylis 
v.  Dineley,  3  Maule  &  S.  477 ;  Ingledew  v.  Douglas,  2  Stark.  Ca.  36  ;  and  where  a 
feme  covert  having  a  separate  estate,  gave  a  bond  for  a  sum  advanced  at  her  request 
to  her  son-in-law,  it  was  held,  that  a  promise  by  her  to  pay  it  after  her  husband's  de- 
cease, was  binding  on  her  executors.  Lee  v.  Muggeridge,  5  Taunt.  36.  ||  [A  warrant 
of  attorney  given  by  an  infant  is  merely  void.  Saunderson  v.  Marr,  1  H.  Black.  75.] 
||  And  see  Storton  v.  Tomlins,  2  Bing.  R.  475.  The  trading  contract  of  an  infant  is 
not  void,  but  he  may  enforce  it  at  his  election.  Bruce  v.  Warwick,  6  Taunt.  118. 
And  an  infant's  promise  as  one  of  two  acceptors  of  a  bill  of  exchange  seems  only 
voidable,  not  void.  Gibbs  v.  Merrill,  3  Taunt.  307  ;  sed  vide  contra,  2  Barn.  &  C. 
820.11 

||  The  probate  of  the  will  of  a  feme  covert  is  absolutely  void. 
Clayton  v.  Adams,  6  Term  R.  605.  || 

So  likewise  the  bond  of  a  person  non  compos  mentis,  after  office  found, 
is  absolutely  void. 

4  Co.  R.  128,  Beverley's  case.  It  is  said  the  reason  why  the  bond  of  ..n  infant  or 
person  non  compos,  is  void,  is  because  the  law  has  appointed  no  act  to  be  done  to  avoid 
it;  and  the  only  reason  why  the  party  cannot  plead  non  est  factum  is,  that  the  cause 
of  nullity  is  extrinsic,  and  does  not  appear  on  the  face  of  the  deed.  2  Salk.  675. 
Thompson  v.  Leach.     And  see  post,  What  acts  are  voidable  only. 

And  in  general  all  bonds  which  are  given  for  a  purpose  malum  in  se, 
as  to  kill  or  rob  another,  are  void. 

See  ante,  tit.  Obligation  (D)  and  (E).  0See  Badger  v.  Williams,  1  Chip.  137  ; 
Whitaker  v.  Cone,  2  Johns.  Cas.  58  ;  Swett  v.  Poor,  11  Mass.  549  ;  Toler  v.  Arm- 
strong, 4  Wash.  C.  C.  R.  297  ;  Jones  v.  Caswell,  3  Johns.  Cas.  29  ;  Thompson  v. 
Davies,  13  Johns.  112 ;  Gulick  v.  Ward,  5  Halst.  87;  Hudson  v.  Wilkins,  4  Mass. 
370 ;  Churchill  v.  Perkins,  5  Mass.  541 ;  Denny  v.  Lincoln,  5  Mass.  385  ;  Beldin"  v. 
Pitkin,  2  Caines,  147. 

A  contract  to  do  an  illegal  or  immoral  act  is  void. 

Forsythe  v.  State,  6  Ham.  21 ;  Winnebinner  v.  Weisiger,  3  Monr.  35.0 

Likewise  bonds  given  for  the  performance  of  a  malum  prohibitum,  as 
for  maintenance. 

And  bonds  to  oblige  persons  to  neglect  their  duty  to  the  king  and  king- 
dom, are  absolutely  void. 

If  a  future  lease  be  made  to  commence  after  the  death  of  tenant  in 
tail,  it  is  merely  void  in  its  creation ;  for  it  is  not  to  commence  till  the 
title  of  the  issue  commences,  and  that  is  an  elder  title  concurring  with 
it ;  and  if  the  law  should  make  it  otherwise  than  void,  the  law  would 
make  him  a  trespasser. 

2  Salk.  620,  Machil  v.  Clerk.     See^,  (C). 

If  a  bishop  grants  administration,  and  there  are  bona  notabilia,  such  ad- 
ministration is  absolutely  void,  as  well  as  to  the  goods  Avithin  his  own 
diocese  as  elsewhere,  because  he  hath  in  such  case  no  jurisdiction  whatever. 

5  Rep.  30,  Prince's  case  ;  8  Rep.  135,  Sir  John  Nedham's  case ;  Noy,  90,  Cross- 
man  v.  Hume.  {See  2  Mass.  T.  Rep.  120,  Wales  v.  Willard.}  And  see  post,  (C). 
II As  to  the  other  cases  in  which  administration  is  void,  and  in  which  voidable,  see 
Toller,  Law  of  Ex.  120,  (5th  edit. :)  ante,  tit.  Executors  and  Administrator s.\\ 


376  VOID  AND  VOIDABLE. 

(B)  What  Acts  are  absolutely  void. 

So  likewise  a  judgment,  given  by  persons  who  have  no  good  commis-  j 
sion  for  that  purpose,  is  void. 

3  Inst.  231.  And  it  may  be  added,  that  in  general  all  acts  done  by  ministers  of 
justice  without  authority  are  void.     10  Rep.  76  b.     And  see^jos?,  (C). 

||  By  4  Gr.  4,  c.  76,  §  22,  marriages  in  any  other  place  than  a  church  or 
public  chapel,  &c,  unless  by  special  license,  or  without  publication  of 
banns,  or  license  of  marriage,  or  solemnized  by  a  person  not  being  in- 
holy  orders,  are  null  and  void  to  all  intents  and  purposes. 

4  G.  4,  c.  7G,  I  22 ;  and  see  tit.  Marriage,  (C).|| 

/3  Commissioners  were  bound  by  law  to  build  a  courthouse,  certain  per- 
sons agreed  by  subscription  to  pay  the  commissioners  a  certain  sum,  pro- 
vided they  would  build  on  a  certain  lot ;  this  contract  is  not  binding, 
although  they  build  on  the  lot,  it  being  contrary  to  public  policy. 

County  Commissioners  v.  Jones,  1  Breese,  103  ;  see  State  v.  Collins,  6  Hamm.  142. 

Where  any  part  of  the  consideration  of  a  contract  is  the  suppression 
of  evidence  in  a  criminal  prosecution,  such  contract  is  void. 

Badger  v.  Williams,  1  Chip.  137. 

A  contract  made  to  indemnify  a  party  for  doing  an  illegal  or  immoral 
act,  to  be  done  at  a  future  period,  is  void. 

Knceland  v.  Rogers,  2  Hall,  579 ;  14  Johns.  381 ;  1  Caines,  450 ;  see  Gulick  v. 
Ward,  5  Halst.  87. 

An  agreement  to  give  B  $1000  on  condition  that  he  will  not  offer  to 
the  postmaster-general  to  carry  the  mail,  on  a  mail  route,  is  void. 

Gulick  v.  Ward,  5  Halst.  87. 

An  agreement  tending  to  prevent  a  competition  at  a  sale  on  execution, 
is  void. 

Jones  v.  Caswell,  3  Johns.  Cas.  29;  Thompson  v.  Davies,  13  Johns.  112;  G  Johns. 
194  ;  8  Johns.  444. 

An  agreement  to  reprint  a  literary  work,  in  violation  of  the  proprie- 
tor's copyright,  is  void. 

Nichols  v.  Ruggles,  3  Day,  145. 

An  agreement  made  between  a  third  person  and  an  officer  to  indemnify 
the  latter  for  neglecting  his  duty,  is  void. 

Hudson  v.  Williams,  7  Green].  113  ;  Ayer  v.  Hutching,  4  Mass.  370;  5  Mass.  541. 
See  Denny  v.  Lincoln,  5  Mass.  385. 

An  agreement  in  restraint  of  trade  generally  throughout  the  state,  is 
void. 

Nobles  v.  Bates,  7  Cowen,  307. 

But  when  the  party  is  restrained  from  trading  only  in  a  particular 
place,  or  for  a  particular  time,  the  contract  is  not  void  for  this  cause. 

7  Cowen,  307.  See  8  Mass.  223  ;  9  Mass.  522 ;  1  Pick.  450 ;  3  Pick.  188  ;  4  Bibb, 
480. 

An  action  cannot  be  maintained  for  the  price  of  lottery  tickets  not 
authorized  by  law. 

6  Binn.  329  ;  Seidenbender  v.  Charles,  4  S.  &  R.  151.  See  Barton  v.  Hughes,  2 
P.  A.  Browne,  48 ;  Biddis  v.  James,  0  Binn.  312  ;  Yohe  v.  Robertson,  2  Whart.  155 ; 
Hunt  v.  Knickcrbacker,  5  Johns.  327. 

An  obligation  for  the  sale  of  an  office,  or  a  deputation,  is  void. 
Daton  v.  Rodes,  3  Marsh.  433  ;  Harolson  v.  Dickens,  2   Car.  Law  Rcpos.  GO.     See 
Meredith  v.  Ladd,  2  N.  H.  Rep.  517  ;  Cardigan  v.  Page,  G  N.  H.  Rep.  183;  De  For- 
rest v.  Braincrd,  2  Day,  528 ;  Tappan  v.  Brown,  9  Wend.  175. 


VOID  AND  VOIDABLE.  377 

(B)  What  Acts  are  absolutely  void. 

An  agreement  in  direct  opposition  to  the  laws  of  the  place  where  it  is 

made,  is  void. 

Hall  v.  Mullen,  5  Har.  &  Johns.  193.  See  Wheeler  v.  Russell,  17  Mass.  258  ;  Far- 
rar  v.  Barton,  5  Mass.  395 ;  Koby  v.  West,  4  N.  H.  Rep.  285. 

When  a  part  of  the  consideration  of  an  entire  contract  is  against  law, 
the  whole  contract  is  void. 

Carlton  v.  Whitcher,  5  N.  II.  Rep.  196 ;  Hind  v.  Chamberlin,  6  N.  II,  Rep.  225  ; 
Loomis  v.  Newhall,  15  Pick.  159. 

By  article  of  agreement  under  seal,  it  was  agreed  that  the  defendant 
should  become  assistant  to  the  plaintiffs  in  their  business  of  surgeon-den- 
tists for  four  years  ;  that  the  plaintiffs  should  instruct  him  in  the  business 
of  a  surgeon-dentist,  and  that  after  the  expiration  of  the  term,  the  de- 
fendant should  not  carry  on  that  business  in  London,  or  in  any  of  the 
towns  or  places  in  England  or  Scotland,  where  the  plaintiffs  might  have 
been  practising  before  the  expiration  of  the  said  service.  The  declara- 
tion alleged  as  breaches,  1st,  that  after  the  term,  the  defendant  carried  on 
the  said  business  in  London  ;  2dly,  that  the  plaintiffs  had,  during  the  said 
term,  carried  on  the  said  business  in  Great  Russell  street,  Bloomsbury ; 
yet  the  defendant,  after  the  term,  carried  on  the  said  business  in  the 
same  place.  Plea,  to  first  breach,  that  London  was  a  large  and  populous 
district,  containing  1,500,000  inhabitants,  and  that  the  stipulation  in  the 
agreement  was  an  undue,  unreasonable,  and  unlawful  restriction  of  trade. 
Plea,  to  the  second  breach,  that  before  the  expiration  of  the  service,  the 
plaintiffs  had  practised  in  very  many  towns  in  England,  and  amongst 
others,  London,  Preston,  Oswestry,  &c,  and  that  divers  of  the  said  towns 
were  distant  from  each  other  150  miles ;  wherefore  the  said  stipulation 
was  an  unreasonable  restriction  of  trade,  and  the  said  agreement,  as  to  so 
much,  was  wholly  void.  Held,  that  the  first  plea  was  bad,  as  the  cove- 
nant not  to  practise  in  London  was  valid,  the  limit  of  London  not  being  too 
large  for  the  profession  in  question,  and  that  the  latter  part  of  it  was  also 
bad,  for  attempting  to  put  in  issue  matter  of  law,  viz.,  the  reasonableness 
of  the  restriction.  Seynble,  that  in  considering  the  question  of  restriction, 
the  populousness  of  particular  districts  ought  not  to  be  taken  into  con- 
sideration. Held,  secondly,  that  the  stipulation  as  to  not  practising  in 
towns  where  the  plaintiffs  might  have  been  practising  during  the  service, 
was  an  unreasonable  restriction,  and  therefore  illegal  and  void ;  but  that 
the  stipulation  as  to  not  practising  in  London,  was  not  affected  by  the 
illegality  of  the  other  part.  Every  restraint  of  trade  which  is  larger 
than  what  is  required  for  the  necessary  protection  of  the  party  with  whom 
the  contract  is  made,  is  unreasonable  and  void,  as  injurious  to  the  inte- 
rests of  the  public,  on  the  ground  of  public  policy. 

Mallan  v.  May,  11  M.  &  W.  653. 0 

2.  What  Acts  are  void  as  to  some  Purposes  only. 

Void  things  are  good  to  some  purposes. 

As,  if  lessee  for  twenty  years  take  a  lease  for  ten  years,  to  begin  pre- 
sently, upon  condition  that  if  a  certain  thing  be  not  done  the  lease  shall 
be  void ;  in  that  case,  though  the  second  lease  be  void  on  the  breach  of 
the  condition,  yet  the  surrender  remains  good. 

Finch's  Law,  62. 

So  likewise  if  a  feoffment  be  made,  to  be  void  on  the  non-performance 
of  a  certain  condition,  yet,  after  the  feoffor's  entry  for  the  condition 
Vol.  X.— 48  2  1 2 


378  VOID  AND  VOIDABLE. 

(B)  What  Acts  are  absolutely  void. 

broken,  the  feoffee  shall  have  an  action  for  a  trespass  done  by  the  feoffor 
before. 

Finch's  Law,  02. 

Also,  if  tenant  at  will  grants  over  his  estate,  though  the  grant  be  void, 
yet  it  determines  his  will. 

Arg.  Hard.  47,  Jones  v.  Clerk.  But  if  an  act  be  made  void  by  a  statute,  it  shall 
avail  to  no  purpose  whatever:  therefore  a  simoniacal  presentation  does  not  so  much 
as  amount  to  a  claim.  Arg.  Ibid.  [  A  bill  of  exchange,  or  promissory  note  for  money 
lost  at  play,  is  void  in  the  hands  of  an  endorsee,  though  without  notice,  and  for  a 
valuable  consideration.  1  Salk.  344;  2  Burr.  1077.]  ||See  4  Taunt.  083  ;  4  Barn. 
&  Aid.  212. ||  [The  like  law,  where  it  is  given  on  an  usurious  contract.  Dougl.  730.] 
|| But  not  in  case  of  usury,  if  it  is  in  the  hands  of  a  bond  fide  holder  fur  value.  St. 
58  G.  3,  c.  93.  Where  a  statute  expressly  declares  bills,  &c,  given  on  a  certain  con- 
sideration, void  to  all  purposes,  there  they  are  void  even  in  the  hands  of  a  bond  fide 
holder  for  value,  as  under  the  gaming  act,  9  Ann.  c.  14,  \  1,  the  45  G.  3,  c.  72,  $  10, 
17,  respecting  the  illegal  ransom  of  vessels,  &c. ;  Bowyer  v.  Bampton,  Stra.  1155  ; 
Chitt.  on  Bills,  81  ;  Webb  v.  Brooke,  3  Taunt.  0 ;  Jackson  v.  Warwick,  7  Term  R. 
121.  But  unless  the  instrument  is  declared  void,  the  mere  illegality  of  the  considera- 
tion is  no  defence  against  a  bond  fide  holder  for  value.  Wyatt  v.  Buhner,  2  Espin. 
R.  538 ;  Chitt.  on  Bills,  81 ;  unless  it  is  taken  after  due,  Brown  v.  Turner,  7  Term 
R.  030.  ||  [A  lease  of  a  rectory  by  a  rector  is  void  by  his  non-residence  for  eighty 
days,  2  Term  R.  749.  An  annuity  deed  not  enrolled'  pursuant  to  the  directions  of 
the  17  G.  3,  c.  26,  is  absolutely  void.     Ibid.  603.] 

3.  What  Acts  are  void  as  to  some  Persons  only. 
X  fraudulent  gift  of  goods  is  not  void  against  all,  for  it  remains  good 
against  the  donor,  and  is  only  void  against  his  creditors. 
Per  Anderson,  Cro.  Eliz.  445,  Upton  v.  Basset. 

So  likewise,  a  feoffment  upon  maintenance  or  champerty  is  not  void 
against  the  feoffor,  but  against  him  that  hath  right :  per  Beamond,  J. 
Cro.  Eliz.  445,  Upton  v.  Basset. 

Also,  where  a  feme  covert  or  infant  are  bound  in  an  obligation  with 
others,  though  the  bond  is  void  as  to  the  feme  covert  or  infant,  yet  it  is 
good  as  to  the  others,  who  shall  be  sued  alone,  and  the  writ  shall  not  abate. 

Bro.  Obligation,  pi.  26  ;  1  Roll.  R.  41,  Winscombe  v.  Pigott.  And  see  there  whe- 
ther it  is  necessary  to  aver  the  declaration,  that  the  other  is  a  feme  covert  or  infant. 

||  By  5  &  6  E.  6,  c.  16,  all  bargains,  sales,  promises,  bonds,  &c,  for 
sale  of  any  offices  or  deputations  of  any  offices  shall  be  void  to  and  against 
them  by  whom  such  bargains,  sales,  &c,  are  made. 

5  &  0  Ed.  0,  c.  10  ;  and  see  49  G.  3,  c.  120,  and  tit.  Offices  and  Officers,  Vol.  vii.[| 

,3  Imbecility  of  mind,  not  amounting  to  lunacy,  or  idiocy,  in  the  gran- 
tor of  land,  is  not  sufficient  to  avoid  his  deed,  when  there  has  been  no 
fraud  in  obtaining  it. 

Odell  v.  Buck,  21  Wend.  142.     See  Desilver's  estate,  5  Rawle,  111. 

All  contracts  made  by  lunatics  after  inquisition  found,  are  absolutely 

void. 

L'Amoureux  v.  Crosby,  2  Paige,  422.  See  as  to  efficacy  of  contracts  of  lunatics, 
ante,  Idiots  and  Lunatics,  (F).£f 

4.  How  Acts  void  by  Operation  of  Law  may  be  made  good  by  subsequent  Matter. 
In  equity  the  consent  of  the  heir  makes  good  a  void  devise. 
Chan.  Cases,  209,  Lord  Cornbury  v.  Middleton. 

So  likewise,  a  devise  void  by  misnomer  of  the  corporation  was  decreed 
to  be  a  good  appointment  of  a  charitable  use,  •within  the  43  Eliz. 
Chan.  Cases,  1.07,  Anon. 


VOID   AND   VOIDABLE.  379 

(C)  What  Acts  arc  voidable  only. 

If  a  lease  be  made  by  the  husband,  of  the  wife's  land,  and  the  husband 
die,  the  lease  is  not  void,  but  voidable,  by  the  wife's  entry. 

Arg.  3  Bul.st.  272,  cites  Plow.  Com.  05,  Browning  v.  Beeston.     [Though  a  lease  by 
,  the  husband  of  a  ferae  covert's  estate  (even  not  within  32  II.  8,  c.  28,)  is  only  voida- 
ble, vet  a  mortgage  of  a  feme  covert's  estate,  though  in  form  of  a  lease,  is  void,  Pougl. 
53,  54.]     ||See~7  Term  R.  478.|| 

Likewise,  if  tenant  in  tail  make  a  future  lease  for  years,  which  by 

possibility  may  be  to  commence  during  the  life  of  tenant  in  tail,  it  is  not 

void,  but  voidable  as  to  the  issue. 

2  Salk.  020,  Machil  v.  Clark.     See  ante. 

So,  if  an  infant  make  a  feoffment  or  a  lease,  and  deliver  it  with  his 

thand,  it  is  voidable  only.(a) 

2  Brownl.  248,  Plomer  v.  Hockhead.  It  is  there  added,  that  if  the  feoffment  or 
lease  be  executed  by  letter  of  attorney,  it  is  a  disseisin  to  him.  It  has  been  said  like- 
wise, that  if  the  infant  reserve  a  small  rent,  as  one  penny,  where  the  land  is  worth 
100/.  per  ami.,  such  lease  is  void.  2  Leo.  210,  Humfreston's  case.  \\(a)  Qn.  What  is 
a  reasonable  time  for  the  infant  to  avoid  the  lease  after  he  attains  twenty-one? 
Holmes  v.  Blogg,  1  Moo.  400. ||  • 

It  is  said  likewise,  that  a  deed  of  exchange  entered  into  by  an  infant,  or 
one  non  sance  memorice,  is  not  void,  but  may  be  avoided  by  the  infant 
when  arrived  at  age,  or  by  the  heir  of  him  who  is  non  sance  memorice. 

Perk.  281. 

Also,  an  infant's  bond  of  submission  to  an  arbitration  seems  only 
voidable. 
Noy,  93,  Stone  v.  Knight. 

An  infant's  contract  of  marriage  likewise  is  only  voidable. 

2  Stra.  938,  Holt  v.  Ward,  Clarencieux.  ||And  so  also  an  infant's  trading  contract. 
Bruce  v.  Warwick,  0  Taunt.  118 ;  sed  vide  contra,  2  Barn.  &  C.  826. |j 

(3  All  contracts  made  by  infants  contrary  to  their  interest  are  void,  and 
all  contracts  made  with  semblance  of  advantage  are  voidable. 
Rogers  v.  Hurd,  4  Day,  57.     See  4  Conn.  376. 

A  feoffment  by  an  infant  is  voidable,  and  all  other  conveyances  made 

by  him  in  jwis,  are  voidable  at  his  election. 

Pearbon  v.  Eastman,  4  N.  II.  Cas.  441 ;  6  Conn.  494  ;  17  Wend.  119  ;  6  Paige,  035  ; 
2  Tenn.  431.0 

So  likewise  the  deed  of  a  person  non  compos  mentis,  before  office  found, 
is  voidable  only,  but  cannot  be  avoided  by  the  party  himself. 

4  Hep.  124,  Beverley's  case.  The  reason  why  their  acts  cannot  be  avoided  by  them- 
selves, is  because  it  is  a  maxim  in  law,  that  no  man  of  full  age  shall  be  admitted  to 
stultify  himself.  Id.  Ibid.,  and  see  ante,  (B).  llSee  Baxter  v.  Earl  of  Portsmouth, 
5  Barn.  &  C.  170. || 

,8  A  contract  made  with  a  man  who  is  intoxicated,  so  as  not  to  know 

what  he  is  doing,  is  voidable. 

Barrett  v.  Buxton,  2  Aik.  107.  Sae  2  Verm.  97  ;  2  Rep.  Const.  Court,  27 ;  1  South, 
361 ;  1  Green,  231 ;  1  Bibb,  168.0 

A  presentation,  institution,  and  induction  of  a  layman  is  not  void,  but 
only  voidable  by  sentence. 
Per  Pophara,  Cro.  Eliz.  315,  Pratt  v.  Stocke. 

Likewise,  if  the  archbishop  of  a  province  grant  administration,  where 
there  are  not  bond  notabilia  to  warrant  a  prerogative  administration,  yet 


380  VOID   AND   VOIDABLE. 

(D)  How  voidable  Acts  may  be  made  good. 

such  administration  is   only  voidable;    because  the  archbishop  hath  a 

general  jurisdiction  over  all  the  dioceses  in  the  province. 

Cro.  Eliz.  457,  Bingham  v.  Smeathwick.     See  ante,  (B),  note  the  difference.      llSee 
Toller's  Law  uf  Ex.  120,  (5th  edit.)|| 

So  also,  if  letters  of  administration  be  granted  to  one,  and  after  granted 
to  another,  by  this  the  first  are  not  avoided,  except  by  judicial  sentence. 
Cro.  Eliz.  315,  Pratt  v.  Stocke. 

|j  It  is  no  objection  to  an  action  on  a  promissory  note  that  it  was  given 
as  part  of  the  consideration  of  an  indenture  of  apprenticeship  for  less 
than  seven  years,  by  being  antedated,  such  indenture  being  by  the  statute 
of  Elizabeth,  only  voidable  and  not  void. 
Grant  v.  Welshman,  16  East,  207. || 

An  order  of  the  justices  likewise,  being  a  judicial  act,  is  not  absolutely 
void,  but  voidable  only,  and  continues  to  be  an  order  till  it  is  avoided. 
2  Salk.  074,  Hall  v.  Biggs. 

So  likewise,  the  judgment  of  a  superior  court  is  not  void,  but  only 
voidable  by  plea  or  error. 

2  Salk.  074,  Prigg  v.  Adams ;  S.  C,  Carth.  274. 

Thus,  an  erroneous  attainder  is  not  void,  but  voidable  by  writ  of  error. 

2  Inst.  184 ;  2  R.  3,  fo.  21,  22. 

^  Though  the  statute  of  Westm.  2,  13  Ed.  1,  c.  1,  says  finis  ipso  jure 
sit  nullus,  yet  it  is  not  void  against  the  party,  or  his  issue,  or  him  in  re- 
version ;  but  the  issue  and  he  in  reversion  have  remedy  to  avoid  it ;  and 
the  words  of  the  statute  sit  nullus  are  construed  to  mean  that  it  is  as 
good  as  void,  in  respect  of  the  defeasibleness  of  it. 

Arg.  1  Boll.  B.  158,  159,  Warren  v.  Smith,  alias  Magdalen  College's  case. 

So,  where  the  statute  of  additions  ordains,  that  if  any  be  outlawed 
without  addition,  the  outlawry  shall  be  clearly  void  and  of  no  effect,  yet 
it  shall  not  be  void  without  writ  of  error. 

Arg.  Boll.  B.  159,  Smith  v.  Warren. 

P  A  contract  made  while  the  defendant  was  under  duress,  may  be 
avoided.  But  an  agreement  made  by  a  party  under  legal  arrest  is  not 
void  on  that  ground. 

Shephard  v.  Watrous,  3  Caines,  100. 

In  South  Carolina,  duress  of  goods  has  been  holden  sufficient  to  en- 
able the  defendant  to  avoid  a  contract. 

Collins  v.  Westbury,  2  Bav,  211;  Sasportas  v.  Jennings,  1  Bav,  470;  but  see 
2  Gallis.  337  ;  Hardin,  G05.£/ 

(D)  How  voidable  Acts  may  be  made  good. 

Where  a  lease  is  voidable,  acceptance  of  the  rent  will  make  it  good ; 
but,  where  it  is  void,  no  acceptance  or  other  act  can  make  it  good. 

3  Bep.  04  b.  ||Co.  Litt.  215  a,  n.  l.||  Thus  in  the  case  above  put,  where  tenant  in 
tail  makes  a  future  lease,  which  may  possibly  commence  in  his  own  life,  though  it  is 
voidable  as  to  the  issue,  yet  it  may  be  made  good  by  the  issue's  acceptance  of  rent. 
Arg.  3  Lev.  271,  Butler  v.  Baker.  ||  As  to  voidable  leases,  see  tit.  Leases,  (D)  and  (I), 
an(i;  vol.  v. || 

p  A  voidable  contract  of  an  infant  may  be  ratified,  either  expressly  or 
impliedly  by  his  acts. 

Lawson  v.  Lovejov,  8  Greenl.  405  ;  Cheshire  v.  Barrett,  4  M'Cord,  241.  See  ante, 
toI.  v.  143. 


VOID    AND    VOIDABLE.  381 

(E)  How  they  may  be  avoided. 
An  infant  cannot  confirm  his  contract  for  part  and  avoid  it  for  the  re- 
mainder. 
Bigelow  v.  Kinney,  3  Verm.  353  ;  Dana  v.  Coombs,  G  Greenl.  89. 0 

(E)  How  they  may  be  avoided. 

A  deed  being  voidable,  is  to  be  avoided  by  special  pleading  ;  and  where 
an  act  of  parliament  says,  that  a  deed,  &c,  shall  be  void,  it  is  intended 
that  it  shall  be  by  pleading. 

5  Rep.  119  a,  Whelpdale's  case. 

Where  a  deed  is  a  voidable  deed  at  the  time  of  pleading ;  as,  if  an  in- 
fant seal  and  deliver  a  deed,  or  one  of  full  age  deliver  a  deed  by  duress, 
&c,  the  obligor  must  not  plead  non  est  factum;  because  when  the  action 
was  brought  it  was  his  deed,  and  must  be  avoided  by  special  pleading.(a) 

5  Rep.  119  a,  Whelpdale's  case.   But  if  the  seal  be  broken,  defendant  may  plead  non 
est  factum;  for  though  it  was  once  a  deed,  yet  at  the  time  of  the  plea  it  was  not  his  deed, 
Id.  ibid,     [(a)  The  reason  why  the  defendant  in  this  case  must  plead  specially,  and 
not  merely  rely  on  the  plea  of  non  est  factum,  is  not  because  the  instrument  is  inform  a 
deed,  but  because  it  has  an  operation  from  the  delivery.     For  the  delivery  of  a  deed 
cannot  be  void,  but  is  only  voidable  ;  so  that  deeds  which  take  effect  by  delivery  can 
be  only  voidable;  whilst  those  which  do  not  so  take  effect  are  absolutely  void.    3  Burr. 
1804  ;'l  II.  Black.  75.     But  it  is  not  because  the  deed  may  be  avoided  by  special 
pleading,  that  it  is  therefore  voidable ;  but  being  only  voidable,  the  party  is  bound  to 
.disclose  that  matter  in  his  plea  which  shall  avoid  it;  for  prima  facie  it  is  good;  it 
passeth  an  interest;  it  is  capable  of  confirmation ;  its  validity,  therefore,  shall  not  be 
questioned  without  giving  the  other  party  an  opportunity  of  supporting  it  in  his  repli- 
cation.]    ||  Neither  the  text  nor  the  note  afford  any  clear  rule  as  to  the  cases  where  a 
bond  must  be  avoided  by  a  special  plea,  and  where  the  matter  may  be  shown  on  non  est 
factum.     The  distinction  seems  to  be,  that  matter  which  tends  to  show  an  invalid  or 
defective  execution  of  the  deed  (as  an  execution  by  a  lunatic,  Stra.  1104,  a  feme  covert, 
or  under  fraud,  or  by  a  drunken  man,  Com.  Dig.  Pleader,  2,  (W),  18  ;  Bull.  N.  P. 
172,  or  a  subsequent  erasure,  3  Camp.  181,)  may  be  shown  on  non  est  factum  ;  but  that 
matter  impeaching  the  deed  for  the  illegality  of  its  matter  or  consideration,  whether  at 
common  law  or  by  statute,  should  be  specially  pleaded,  concluding,  "and  so  the  said 
deed  is  void,"  and  not  '•  sic  non  est  factum."     Thus  in  case  of  a  bond  in  restraint  of 
matrimony,  or  given  to  compound  a  felony,  Colton  v.  Goodridge,  2  Black.  R.  1108; 
.  Harmer  v.  Wright,  2  Stark.  Ca.  35  ;  Harmer  v.  Rowe,  2  Chitt.  Rep.  334.     So  also  in 
\  cases  of  usury  and  gaming,  the  illegality  must  be  specially  pleaded,  1  Stra.  498  ;  Com. 
!  Dig.  Pleader,  2  W.  26;  1  Saund.  295  a,  note  (1).     So,  also,  that  the  bond  was  for 
,  securing  the  price  of  goods  sold  by  plaintiff  to  defendant  for  an  illegal  traffic  to  the 
!  East  Indies.     Paxton  v.  Popham,  9  East,  408  ;  or  that  the  bond  was  illegal  and  void 
!  by  the  49  G.  3,  c.  120,  against  the  sale  of  offices.     Greville  v.  Atkyns,  9  Barn.  &  C. 
462;  and  see  Pole  v.  Harrobin,  9  East,  416.     So,  also,  according  to  2  Will.  Saund. 
1  59,  n.  (3),  if  a  bail-bond  is  not  made  according  to  the  stat.  23  Hen.  G,  c.  9,  a  special 
i  plea  is  necessary.     But  in  Thompson  v.  Rock,  4  Maule  &  S.  338,  it  was  held  that  this 
j  defence  might  be  made  on  non  est  factum,  on  the  ground  that  the  plea,  if  special,  would 
'  in  such  case  conclude  "  et  sic  non  est  factum;"  and  that,  according  to  modern  practice, 
!  the  plea  might  therefore  bo  general.     But  the  learned  editor  of  Coke's  Reports,  part 
i  5,  119  b,  shows  that  the  special  plea  in  such  case  would  conclude  (according  to 
|  1  Lord  Raym.  349  ;  2  Vent.  237 ;  1  Saund.  159  ;  Bro.  Abr.  Non  est  factum,  14  ;)  "and 
so  the  deed  is  void  and  of  no  effect ;"  and  the  case  therefore  is  of  doubtful  authority. 
;   The  cases  of  infancy  and  duress,  in  which  the  defence  must  be  specially  pleaded, 
seem  hardly  reconcilable  with  the  above  distinction,  since  they  impeach  the  execution 
:   of  the  deed,  and  do  not  show  illegality  in  the  matter  or  consideration;  and  in  these 
j   cases,  it  seems  the  plea  is  a  special  non  est  factum.    See  5  Coke's  Rep.  119  b,  note  (c), 
j   and  the  cases  there  cited.    In  1  Will.  Saund.  295  a,  note,  it  is  said  that,  though  usury 
;   appear  on  the  face  of  the  condition,  the  defendant  cannot  demur,  but  it  must  be  spc- 
j   cially  pleaded.     But  this  seems  erroneous,  ibid,  note  (f) ;  and  see  2  Term  R.  575.  || 

But  a  feoffment  or  lease  for  life,  which  is  declared  to  be  void  on  breach 
;  of  a  condition,  must  nevertheless  be  made  void  by  re-entry,  it  being  a  free- 


382  VOID   AND   VOIDABLE. 

(F)  By  whom  they  may  be  avoided. 

hold  _  conveyed  by  livery :  whereas  a  lease  for  years  on  breach  of  the 
condition  is  absolutely  void,  and  there  needs  no  re-entry. 
3  Rep.  05  a,  Pennant's  case ;  Poph.  100,  Goodale  v.  "Wyatt. 
||  Assuming  that  an  infant  may  avoid  indentures  of  apprenticeship  by 
which  he  has  bound  himself,  (which  does  not  appear  quite  settled,)  still 
his  leaving  his  master's  service  and  going  into  that  of  another  person,  is 
not  such  an  act  as  will  avoid  the  indentures. 

The  King  v.  Hindringham,  6  Term  R.  557 ;  Ashcroft  v.  Bertles,  Ibid.  G52 :  and  see 
3  Maule  &  S.  497.  || 

(F)  By  whom  they  may  be  avoided. 

Of  a  void  act  or  deed  every  stranger  may  take  advantage,  but  not  of  a 
voidable  one ;  as,  if  there  are  two  joint-tenants  within  age,  and  one  makes 
a  lease  for  years,  and  dies,  the  other  shall  avoid  it,  for  the  lease  is  utterly 
void :  but,  if  the  one  leases  for  life,  and  makes  livery  in  person,  and 
dies,  the  other  shall  not  avoid  it.  Per  Wray,  C.  J. 
2  Lev.  218,  in  Ilumpherston's  case. 

p  Privies  in  blood  and  representation  may  avoid  the  voidable  deeds  of 

lunatics,  but  privies  in  law  and  estate  cannot. 

Brackenridge  v.  Ormsley,  1  J.  J.  Marsh.  245.  See  Cates  v.  Woodson,  2  Dana,  454 ; 
Lazell  v.  Pinnick,  1  Tyl.  247.     See  ante,  Infancy  and  Age,  (I),  G.tf 

||  Where  an  infant  slave  in  the  West  Indies  executed  an  indenture, 
covenanting  to  serve  B  for  a  certain  term  of  years  as  his  servant,  and  B 
covenanted  to  do  certain  things  on  his  part,  and  B  then  came  to  England 
with  the  slave,  and  A,  a  recruiting  officer,  enticed  him  to  enlist.  In  an 
action  brought  by  B  against  A  for  seducing  his  servant  from  his  service 
the  question  was,  Whether  the  allegation  in  the  declaration  that  the  infant 
slave  contracted  to  serve  B  for  a  term  of  years  was  proved,  since  the 
youth  was  both  an  infant  and  a  slave,  and  therefore  incapable  of  binding 
himself  by  the  indenture.  But  Heath,  J.,  considered  the  contract 
beneficial  to  the  infant,  since  by  analogy  to  the  old  law  respecting  villains, 
(Co.  Litt.  187  b  ;  11  Sta.  Tri.  342,)  it  might  be  a  manumission  by  impli- 
cation ;(a)  and  the  court  accordingly  held  that  the  contract  was  voidable 
only,  and  that  the  defendant,  a  stranger  and  wrongdoer,  could  not  take 
advantage  of  the  infant's  privilege  of  avoiding  his  contracts,  which  was 
personal  to  himself. 

Keano  v.  Boycott,  2  II.  Black.  511.  (a)  The  learned  Reporter  suggests  that  this 
analogy  is  unsound  ;  and  that  by  the  general  policy  and  local  institutions  of  the  W.  I. 
Islands,  a  slave  cannot  be  manumitted  by  imputation ;  and  cites  the  law  of  St.  Vincent, 
prescribing  a  mode  of  manumission,  with  a  promise  for  an  annual  allowance  to  the 
slave,  and  enacting,  that  "  any  manumission  in  any  other  manner  shall  be  void."  But 
quaere,  whether  this  clause  can  apply  to  any  other  than  express  manumissions  contrary 
to  the  mode  prescribed  ;  and,  at  all  events,  the  master  having  voluntarily  treated  his 
slave  as  mi  juris,  by  contracting  with  him,  would  seem  to  be  estopped  from  contending 
that  such  contract  was  void;  and  what  the  master  could  not  do,  surely  no  stranger 
could  df>.  And  with  respect  to  the  infancy,  whether  the  contract  would  be  an  implied 
manumission  or  not,  certainly  it  is  not  such  a  contract  as  the  court  could  of  itself 
pronounce  prejudicial,  and  therefore  void.  It  seems  therefore  clearly  only  voidable, 
and  then  the  right  of  avoiding  it  only  belongs  to  the  infant.  So  that  the  decision 
seems  sound,  whether  the  analogy  suggested  by  Heath,  J.,  be  tenable  or  not.!] 


383 


WAGER  OF  LAW. 


Wager  of  law  is  a  particular  mode  of  proceeding,  whereby,  in  an  action 
of  debt(a)  brought  upon  a  simple  contract  between  the  parties,  without 
deed  or  record,  the  defendant(6)  may  discharge  himself  by  swearing  in  a 
court  in  the  presence  of  compurgators,^)  that  he  oweth  the  plainthT 
nothing  in  matter  and  form  as  he  hath  declared.  And  this  waging  his 
law,  is  sometimes  called  making  his  law. 

(a)  Actions  of  debt  are  the  most  common  cases  in  -which  defendant  may  wage  his 
law  ;  but  he  may  likewise  wage  his  law  in  actions  of  detinue  and  other  cases,  as  also 
in  real  actions,  as  will  appear  in  the  course  of  this  title,  (b)  In  some  cases,  however, 
the  plaintiff  may  wage  his  law.  See  letter  _(E).  (c)  According  to  some,  the  compur- 
gators should  be  eleven  in  number,  for  which  reason  every  wager  of  law  is  said  to 
countervail  a  jury,  as  the  defendant  must  wage  his  law,  de  duodecimo  vianu,  that  is, 
by  himself  and  eleven  more.  Others  hold  twelve  to  be  necessary  ;  but,  according  to 
some,  less  than  eleven  will  suffice.  The  defendant  is  sworn  absolutely  de  Jidelitate, 
and  the  compurgators  de  crediditate ;  that  is,  that  they  believe  what  he  swears  to  be 
true.  33  II.  6,  f.  8  ;  1  Inst.  295  ;  2  Shep.  Abr.  190  ;  2  Vent.  171 ;  Anon.  N.  B.  It 
has  been  said,  that  compurgators  are  not  absolutely  necessary,  unless  the  plaintiff 
demands  them.     2  Keb.  360,  Puckridge  v.  Brown. 

For  the  better  understanding  of  this  title,  which  is  now  in  a  great  mea- 
sure obsolete,(<i)  it  will  be  necessary  to  consider  the  following  heads : 

(d)  When  a  defendant  has  waged  his  law,  it  is  a  perpetual  bar  to  the  plaintiff's  de- 
mand, for  the  law  presumeth  that  no  man  will  forswear  himself;  but  men's  consciences, 
as  Lord  Coke  observes,  are  grown  so  large,  especially  in  this  case  which  passes  with 
impunity,  (since  no  indictment  for  perjury  lies  in  wager  of  law,)  that  it  is  now  become 
customary,  instead  of  bringing  actions  of  debt,  to  bring  actions  upon  the  case  upon  the 
defendant's  promise,  wherein  he  cannot  wage  his  law.  1  Inst.  295  ;  1  Vent.  296. 
Actions  of  detinue  likewise  are  now  seldom  brought,  actions  of  trover  and  conversion 
having  taken  place  in  their  stead,  where  the  conversion  changes  the  detinue  to  an 
action  on  the  case, 

(A)  The  Reason  for  allowing  the  Wager  of  Law. 

(B)  The  Manner  of  waging  Law. 

(C)  At  what  Time  Law  may  be  waged. 

(D)  In  what  Cases  Law  may  be  waged,  and  in  what  not. 

(E)  What  Persons  may  wage  their  Law. 

(F)  Against  whom  Wager  of  Law  lies. 

(G)  In  what  Cases  the  Defendant  is  barred  from  waging  his  Law,  by  having  ex- 
amined the  Plaintiff  or  his  Attorney. 


(A)  The  Reasons  for  allowing  the  Wager  of  Law. 
The  reason  wherefore,  in  an  action  of  debt  upon  a  simple  contract,  the 
defendant  may  wage  his  law,  is,  for  that  the  defendant  may  satisfy  the 
party  in  secret,  or  before  witnesses,  and  all  the  witnesses  may  die,  so  the 
law  doth  allow  him  to  wage  his  law  for  his  discharge.  And  this  is  pecu- 
liar to  the  law  of  England,  and  no  mischief  issueth  hereupon ;  for  the 
plaintiff  may  take  a  bill  or  bond  for  his  money ;  or,  if  it  be  a  simple  con- 
tract, he  may  bring  his  action  upon  his  case,  upon  his  agreement  or  pro- 


384  WAGER  OF  LAW. 

(B)  The  Manner  of  waging  Law. 

mise,  which  every  contract  executory  implieth,  and  then  the  defendant 
cannot  wage  his  law. 

2  Inst.  45.  j3  If  the  wager  of  law  ever  existed  in  the  United  States,  it  is  now  abo- 
lished. The  general  rule  is  that  an  action  of  debt  will  lie  against  executors ;  to  this 
there  is  an  exception  that  it  will  not  lie  where  the  executor  might  have  waged  his  law. 
When  this  objection  exists,  however,  the  executor  may  waive  the  benefit  of  it;  and 
if  he  omit  to  demur,  but  pleads  to  the  action,  and  a  verdict  is  found  against  him  ;  he- 
cannot  take  advantage  of  it,  on  this  account,  either  in  arrest  of  judgment,  or  by  writ 
of  error.     Childress  v.  Emory,  8  Wheat.  642.£f 

It  hath  been  said,  however,  that  the  only  true  reason  of  wager  of  law 
is,  the  inconsiderableness  of  the  ground  of  the  plaintiff ' s  demand,  and  it 
suffices  that  the  nature  of  the  defendant's  discharge  be  of  equal  validity 
with  the  ground  of  the  plaintiif's  charge.     Per  Hatsell,  J. 

12  Mod.  G70,  The  City  of  London  v.  Wood.  It  is  an  argument,  says  Hatsel,  J., 
that  the  matter  is  of  no  great  value,  that  the  plaintiff  did  not  take  care  to  have  better 
security  for  it  than  the  slippery  memory  of  man,  and  the  uncertainty  of  a  verbal  con- 
tract; so  that  since  the  tie  was  so  slight,  it  is  no  wonder  if  the  law  will  slightly  dis- 
charge it. 

Originally  it  was  not  only  a  privilege  of  the  defendant  to  discharge  him- 
self, but  one  which  the  plaintiff  had,  when  he  had  no  witness  of  his  debt, 
to  put  the  defendant  under  a  necessity  of  giving  him  his  oath  to  discharge 
himself:  so  it  was  a  kind  of  equity  in  law,  that  the  plaintiff  might  put 
him  to  take  his  oath  that  he  owed  nothing  to  him,  or  confess  the  debt, 
rather  than  the  plaintiff  should  lose  his  debt,  in  cases  where  he  had  no 
witnesses  of  it  at  all,  or  had  some  who  were  then  dead.     Per  Holt,  C.  J. 

12  Mod.  678,  The  City  of  London  v.  Wood. 

The  plaintiff's  bare  affirmance  was  formerly  sufficient  to  put  the  defend- 
ant to  wage  his  law;  but  it  is  provided  by  Magna  Charta,  that  "No 
bailiff  shall  put  any  man  to  his  law,  nor  to  an  oath,  upon  bare  saying, 
without  witnesses  brought  in."  Before  this,  as  has  been  premised,  the 
plaintiff,  on  his  declaration  on  bare  affirmance,  might  make  the  defend- 
ant swear  there  was  nothing  due.  At  this  day,  if  the  plaintiff  produce 
witnesses  to  prove  his  demand,  the  court  may  put  the  defendant  to  wage 
his  law  ;  and  in  such  case  the  defendant  is  not  at  liberty  to  cross-examine, 
any  more  than  where  the  plaintiff  in  a  prohibition  produces  witnesses  to 
prove  his  suggestion. 

2  Salk.  683,  Mood  v.  The  Mayor  of  London. 

(B)  The  Manner  of  waging  Law. 

The  manner  of  waging  of  law  is  thus  :  he  that  is  to  do  it  must  bring  six 
compurgators  with  him  into  court,  and  stand  at  the  end  of  the  bar  to- 
wards the  right  hand  of  the  Chief  Justice ;  and  the  secondary  asks  him, 
Whether  he  will  wage  his  law  ?  If  he  answers  that  he  will,  he  lays  his 
right  hand  on  the  book,  then  the  judges  admonish  him  and  his  compurga- 
tors to  be  advised,  and  tell  them  the  danger  of  taking  a  false  oath  ;  and  if 
they  still  persist,  the  secondary  says,  and  he  that  wagcth  his  laiv  repeats 
after  him  :  Hear  this,  ye  justices,  that  I,  A  B,  do  not  owe  to  CD  the  sum 
of,  tj-c.,  nor  any  penny  thereof  in  manner  and  form  as  the  said  CD  hath 
declared  against  me  :  so  help  me  God.  The  compurgators  then  severally 
make  oath,  that  they  believe  he  swears  truly.  But,  before  the  defendant 
takes  the  oath,  the  plaintiff  is  called  by  the  crier  thrice  ;  and  if  he  do  not 
appear  he  becomes  nonsuited,  and  then  the  defendant  goes  quit  without 


WAGER  OF  LAW.  3S5 

(C)  At  what  Time  Law  may  be  waged. 

taking  his  oath  ;  and  if  he  appear,  and  the  defendant  swear  that  he  owes 
the  plaintiff  nothing,  and  the  compurgators  give  it  upon  oath,  that  they 
believe  he  swears  true,  the  plaintiff  is  barred  for  ever ;  for  when  a  person 
has  waged  his  laiv,  it  is  as  much  as  if  a  verdict  had  passed  against  the 
plaintiff;  if  the  plaintiff  do  not  appear  to  hear  the  defendant  perform  his 
law,  so  that  he  is  nonsuit,  he  is  not  barred,  but  may  bring  a  new  action. 

2  Lill.  Abr.  824 ;  2  Vent.  171,  Anon.  ;  2  Salk.  682,  Anon.  ||  But  it  appeared  in  a 
late  case  to  be  doubtful  how  many  compurgators  were  proper,  and  the  court  refused 
to  assist  the  defendant  by  assigning  the  number.    King  v.  Williams,  2  Barn.  &  C..538.|] 

(C)  At  what  Time  Law  may  be  waged. 

Day  given  for  waging  law  is  peremptory.    Per  three  justices  against  one.. 

3  Bulst.  316.  And  the  defendant  cannot  afterwards  waive  it  without  the  plaintiff's 
consent,  and  betake  himself  to  the  country,  and  upon  his  non-appearance  a  deficit  de 

lege  was  entered.     Bulst.  186,  Harrison  v.  James. But  there  is  a  case  where, 

after  the  roll  was  marked  with  a  deficit  de  lege,  and  costs  assessed,  it  was  moved  and 
prayed,  sedente  curia,  that  the  defendant  might  be  demanded  again,  and  it  was  granted,, 
and  then  defendant  made  his  law.     Noy,  42,  Anon. 

Where  the  defendant  wages  his  law  instanter,  that  is,  the  same  term 
without  day  given  over,  the  plaintiff  need  not  be  called ;  consequently, 
cannot  be  nonsuited.     Thus — 

In  debt  by  assignees  of  commissioners  of  bankrupts,  defendant  came 
in  and  ivaged  his  law  instanter,  and  it  was  debated  if  the  plaintiff  might 
be  nonsuited ;  and  at  length  it  was  agreed,  inasmuch  as  the  defendant 
came  instanter,  that  the  plaintiff  cannot  be  nonsuited  ;  for  which  reason 
the  plaintiff  was  not  called,  but  the  defendant  waged  his  law :  and  so 
the  plaintiff  was  barred. 

Sid.  366,  Buckeridge  v.  Brown.  The  reporter  says,  vide  that  when  defendant 
comes  instanter  to  wage  his  law,  or  at  another  day  in  the  same  term,  to  which  the 
plaintiff  has  imparled,  the  plaintiff  shall  not  be  demanded,  nor  can  he  be  nonsuited. 
Ibid,  cites  14  H.  4,  c.  19  b ;  3  H.  6,  c.  50  a,  S.  C. ;  2  Keb.  360,  by  the  name  of 
Puckeridge  v.  Brown. 

But  in  debt  where  the  defendant  tendered  to  make  his  law  immediately 

that  he  owed  nothing,  $c.,  because  the  plaintiff  appeared  in  court,  it  wns 

awarded  that  the  plaintiff  should  make  his  law ;  and  this  was  the  folly  of 

the  plaintiff,  for  he  might  have  imparled  to  the  law,  and  then  at  the  day 

he  might  have  been  nonsuited.     But  Brooke  makes  a  quaere,  if  he  may 

be  nonsuited  at  another  day  in  the  same  term. 

Bro.  Ley  Gager,  pi.  85,  cites  3  H.  4,  c.  2 ;  Brooke,  tit.  Nonsuit,  pi.  10,  S.  C.  says, 
that  if  he  had  imparled  to  the  law,  such  imparlance  ought  to  be  another  term. 

So  in  debt,  the  defendant  tendered  his  law,  and  the  plaintiff  imparled 
to  a  day  in  the  same  term;  there  the  plaintiff  shall  not  be  demanded, 
nor  be  nonsuited  ;  for  his  appearance  was  of  record  the  same  term,  and  if 
he  refuses  the  law,  he  shall  be  barred. 

Bro.  Ley  Gager,  pi.  96,  cities  3  H.  6,  c.  49. 

It  is  said  that  the  defendant  cannot  pray  to  be  admitted  to  wage  law 
instanter,  after  imparlance,  but  before  he  may,  and  then  the  plaintiff  can- 
not be  nonsuit,  if  the  defendant  perfect  his  law :  but,  if  he  wage  his  law 
after  imparlance,  the  plaintiff  may  be  nonsuit. 

2  Lill.  Abr.  825. 

In  debt,  the  defendant  waged  his  law,  and  when  he  came  to  perform 
it,  the  plaintiff  said,  that  he  ivho  now  came  is  another  of  the  same  name, 
for  his  action  is  against  J  S  the  elder ;  and  he  who  now  appears  is  J  S 

Vol.  X.— 49  2  K 


386  WAGER  OF  LAW. 

(D)  In  what  Cases  Law  may  be  waged,  and  in  what  not. 

the  younger,  and  prayed  his  judgment.     Qucere,  for  the  averment  was  not 
granted  or  denied. 

Bro.  Ley  Gager,  pi.  91,  cites  5  E.  4,  c.  5. 

In  debt,  the  defendant  had  day  given  to  wage  his  law,  and  at  the  day 
defendant  was  sick  of  a  burning  fever,  whereupon  the  court  was  moved 
for  another  day  for  the  defendant  to  come  and  wage  his  law,  and  offered 
to  make  all  this  good  by  an  affidavit ;  but  the  court  refused,  and  advised 
him  to  plead  to  the  country,  and  so  he  did. 

3  Bulst.  263,  Smink  v.  Barker. 

In  debt  upon  arbitrament  the  defendant  imparled,  and  came  back  the 
same  term  and  tendered  his  law  ;  and  per  cur.  he  shall  have  his  law. 
Bro.  Ley  Gager,  pi.  41,  cites  8  H.  6,  c.  10. 

So  in  detinue,  the  defendant  pleaded  in  bar,  and  after  relinquished  it, 
and  waged  his  law,  and  well ;  for  a  man  may  relinquish   his  plea,  and 
plead  the  general  issue,  and  this  shall  be  before  the  plea  entered. 
Bro.  Pleadings,  pi.  119,  cites  2  E.  4,  c.  13. 

In  &  praecipe  quod  reddat,  the  tenant  came  at  the  grand  cape  and  waged 
his  law  of  non-summons,  and  at  the  day,  &c,  came  to  make  his  law,  and 
the  demandant  offered  to  waive  the  default,  and  prayed  that  the  tenant  may 
plead  in  chief.  Per  Finch,  you  cannot  do  so  unless  the  tenant  will  con- 
sent to  it ;  and  the  tenant  was  thereof  demanded,  and  would  not  consent, 
therefore  he  waged  his  law,  and  the  demandant  took  nothing  by  his  writ : 
but  at  the  first  day  tvhen  the  tenant  offered  his  laiv,  the  demandant  might 
have  released  the  default,  as  it  seems. 

Bro.  Ley  Gager,  pi.  82,  cites  42  E.  3,  c.  7. 

In  a  praecipe  quod  reddat,  where  essoign  is  cast  for  the  tenant  at  the 
summons  returned,  and  by  his  default  grand  cape  issued  ;  there  he  can- 
not wage  his  law  of  non-summons  at  the  day,  unless  he  surmises  that  the 
essoign  was  not  cast  by  him. 

Bro.  Ley  Gager,  pi.  90,  cites  36  H.  6,  c.  23 ;  and  see  10  H.  6,  c.  9,  that  if  he  had 
so  surmised,  he  might  wage  his  law.    Ibid. 

(D)  In  what  Cases  Law  may  be  waged,  and  in  what  not 

Wager  of  law  is  alloivable  in  five  cases.  %  First  in  debt  upon  simple 
contract,  which  is  the  common  case.  Secondly,  in  debt  upon  an  award 
upon  a  parol  submission.  Thirdly,  in  an  account  against  a  receiver  for 
receipts  by  his  own  hands.  Fourthly,  in  detinue,  though  the  bailment 
were  by  the  hands  of  another.  Fifthly,  in  an  amerciament  in  a  court- 
baron  or  other  inferior  courts  not  of  record  ;  and  in  every  of  these  in- 
stances, the  action  is  grounded  on  a  feeble  foundation,  and  of  small 
consideration  in  law.     Per  Hatsell,  J. 

12  Mod.  670,  The  City  of  London  v.  Wood. 

It  is  to  be  observed  likewise,  that  there  is  a  wager  of  law  of  non-sum- 
mons in  actions  real,  as,  where  upon  summons  against  a  tenant,  he  wages 
his  law,  saying,  that  he  was  not  summoned  according  to  the  law  of  the 
land. 

Note. — This  summons  must  be  on  the  tenant's  land,  and  if  against  an  heir,  must  be 
on  the  lands  which  did  descend ;  or  on  default,  the  tenant  at  the  grand  cape  may  wago 
his  law  of  non-summons. 

Thus,  if  summons  in  praecipe  quod  reddat  be  served  fifteen  days  before  the 


WAGER    OF    LAW.  387 

(D)  la  what  Cases  Law  may  be  waged,  and  in  what  not. 

first  day  of  the  return  of  the  writ,  the  tenant  may  wage  his  law  of  non-sum- 
mons :  for  fifteen  days  before  the  fourth  day  of  the  return  will  not  serve. 
Bro.  Ley  Gager,  pi.  57,  cites  24  E.  3,  c.  46. 

So  it  is  said  in  writ  of  desceit,  that  if  the  sheriff  returns  in  praecipe 

quod  reddat,  that  the  tenant  is  summoned  by  J N  and  J  O,  where  he  was 

not  summoned  but  by  one  of  them,  the  tenant  may  wage  his  law,  that  he 

was  not  summoned  according  to  the  law  of  the  land.     Per  Fulthorp. 

Bro.  Ley  Gager,  pi.  27,  cites  50  E.  3,  c.  16.  And  per  Belk,  the  vouchee  in  praecipe 
quod  reddat  shall  not  wage  his  law,  that  he  was  summoned  upon  the  summons;  for  he 
need  not  save  his  default  at  the  grand  cape  ad  valentiam  ;  but  if  he  be  returned  sum- 
moned, where  he  was  not  summoned,  and  after  grand  cape  ad  valentiam  issues,  he  shall 
have  desceit  of  the  return,  &c.     Ibid. 

But  in  33  H.  6,  c.  8,  in  a  proscipe  quod  reddat,  the  tenant  made  default, 
but  appeared  on  the  return  of  the  grand  capias,  and  pleaded  non-summons, 
and  would  conclude  to  the  country,  where  the  proper  trial  was  by  wager 
of  law  of  non-summons ;  and  the  question  there  was,  if  he  could  waive 
his  plea  of  wager  of  law,  and  betake  himself  to  a  plea  concluding  to  the 
country  ?  And  the  better  opinion  there  is,  that  he  could  not  put  him- 
self upon  his  country,  and  decline  this  wager  of  law ;  and  that  case  is 
plainly  out  of  the  statute  of  Magna  Charta,  because  it  is  not  debt,  nor 
simplex  loquela,  but  a  process  of  non-summons,  from  which  he  was  to 
save  himself.     Per  Holt,  C.  J. 

12  Mod.  679,  The  City  of  London  v.  Wood. 

It  has  been  said,  that  a  man  may  wage  his  law  of  non-summons  in  re- 
summons, as  well  as  he  may  in  the  original ;  per  Brian  and  Choke,  but  per 
Catesby,  contra.  Qucere  ;  and  the  writ  was  returnable  15  Trin.  and  the 
summoners  summoned  him  about  the  15th  of  Corpus  Qhristi;  and  therefore, 
per  Choke,  he  may  wage  his  law  of  non-summons,  that  he  was  not  sum- 
moned according  to  the  law  of  the  land ;  for  the  law  is,  that  he  shall  be 
re-summoned  by  the  day  in  the  writ;  but  Catesby  said,  that  he  cannot  wage 
his  law  here  by  conscience,  nor  can  he  wage  his  law  in  re-summons. 

Bro.  Ley  Gager,  pi.  103,  cites  1  E.  5,  c.  2. 

Where  things  are  part  real  and  part  personal,  the  defendant  may  wage 
his  law  sometimes  for  the  whole,  and  sometimes  for  part  only,  thus — 

In  detinue  of  a  box  with  charters  and  muniments,  if  the  plaintiff  counts 
not  of  any  charters  in  particular,  the  defendant  may  wage  his  law  of  the 
whole,  19  II.  6,  9 ;  because  before  the  showing  of  it,  the  box  and  all  in 
it  was  but  a  chattel. 

2  Roll.  Abr.  108. 

If  detinue  be  brought  for  a  chest  sealed,  with  money  and  charters  of 
land  in  it,  the  law  lies  of  the  whole. 
2  Roll.  Abr.  108. 

But  otherwise  it  is,  if  he  declares  of  certain  charters  in  particular,  and 
if  the  writ  be  not  that  the  chest  was  sealed. 
2  Roll.  Abr.  108. 

In  detinue  of  certain  charters  and  muniments  contained  in  a  chest,  if 
plaintiff  declares  of  one  charter  in  particular,  the  defendant  may  wage 
his  law  of  the  residue. 

_  2  Roll.  Abr.  108.  In  such  case  the  defendant  waged  his  law  as  to  all  but  this  par- 
ticular charter,  and  did  it  immediately;  and  the  reason  seems  to  be,  that  when  it  is  in 
a  chest  enclosed,  the  charters  are  of  the  nature  of  the  chest,  which  is  only  a  chattel : 
contra  of  charter  special ;  for  of  this  he  cannot  wage  his  law,  because  it  concerns  frank- 
tenement.     Bro.  Ley  Gager,  pi.  61,  cites  14  H.  6,  c.  1. 


388  WAGER   OF  LAW. 

(D)  In  what  Cases  Law  may  be  waged,  and  in  what  not. 

But  in  no  case  where  a  contempt,  trespass,  deceit,  or  injury  is  supposed 
in  the  defendant,  shall  he  wage  his  law;  because  the  law  will  not  trust 
him  with  an  oath  to  discharge  himself  in  those  cases. 

1  Inst.  295  a. 

Likewise  where  the  matters  charged  are  facts  notoriously  known,  in 
such  case  there  are  no  precedents  of  wagers  of  law.     Per  Hatsell,  J. 

12  Mod.  671,  Civit.  London  v.  Wood ;  and  per  Holt,  C.  J.  The  secrecy  of  the  con- 
tract, which  raises  the  debt,  is  the  reason  of  the  wager  of  law.  But,  if  the  "debt  arise 
from  a  contract  that  is  notorious,  there  shall  be  no  wager  of  law.  In  debt  upon  a  con- 
tract for  a  sum  in  gross,  wager  of  law  will  lie ;  but,  if  debt  be  brought  for  rent  due 
upon  a  parol  lease,  it  will  not  lie ;  and  the  reason  is,  because  it  is  in  the  realty,  and 
arises  from  the  taking  of  the  profits  of  the  land,  and  occupation  of  it  in  the  country, 
and  so  the  notoriety  of  the  thing  excludes  the  defendant  from  waging  his  law.  Ibid. 
681. 

Agreeable  hereto  it  was  said  by  Holt,  C.  J.,  that  in  account,  if  the  re- 
ceipt was  by  the  defendant,  the  defendant  may  wage  his  law,  but  not  if 
by  the  hands  of  a  third  person  :(a)  it  is  true,  the  law  is  otherwise  in 
detinue  on  a  bailment ;  for  though  the  bailment  was  by  the  hands  of  a 
third  person,  the  defendant  may  wage  his  law ;  but  here  the  bailment  is 
not  traversable,  but  the  detainer,  and  that  is  the  point  of  the  action,  and 
the  delivery  might  be  private. 

2  Salk.  683,  Mood  v.  The  Mayor  of  London,  (a)  Because  the  receipt  is  traversable 
in  this  action  ;  2  Roll.  Abr.  109  ;  and  becauseit  appears,  from  the  nature  of  the  action, 
that  a  third  person  can  prove  the  receipt  per  Holt,  C.  J.,  12  Mod.  679  ;  but  in  account 
by  the  baron  of  receipt  by  the  defendant,  by  the  hands  of  the  feme  of  the  plaintiff,  the 
defendant  may  wage  his  law ;  for  the  baron  and  feme  are  one  person  in  law ;  and, 
therefore,  it  is  an  immediate  receipt  of  the  plaintiff  himself.     Bro.  Ley  Gayer,  pi.  54. 

By  the  4  and  5  Annse  16,  it  is  enacted,  that  actions  of  account  may  be 
brought  against  a  bailiff  or  receiver  for  receiving  more  than  his  just  share, 
and  an  action  of  account  ivas  brought  upon  this  statute  against  defendant^ 
as  bailiff  ad  merchandizandum,  who  waged  his  law ;  and  upon  demurrer, 
it  was  objected  that  wager  of  law  would  not  lie  against  a  bailiff  ad  merchan- 
dizandum ;  but  if  the  action  had  been  brought  against  a  receiver  and 
plaintiff  did  not  show  by  whose  hands,  there,  wager  of  law  would  lie ; 
and  so  it  was  adjudged  in  this  case  for  the  plaintiff. 

8  Mod.  303,  Page  v.  Barns. 

There  is  no  act  of  parliament  in  express  words  which  takes  away  wager 
of  law  in  action  of  debt  upon  arrearages  of  account ;  but  at  the  common 
law  the  defendant  shall  have  his  law  in  action  of  debt,  brought  upon 
arrearages  of  account,  whether  the  account  be  before  one  auditor,  or 
many,  as  appears  in  38  H.  6,  f.  6  a.  But  the  reason  ivhy  the  defendant 
shall  not  wage  his  law  when  the  account  is  made  before  auditors,  is  upon 
the  statute  of  West.  2,  c.  11,  for  now  this  statute  has  made  the  auditors 
judges  of  record,  because  they  are  empowered  thereby  to  commit  the 
defendant  to  prison,  which  none  can  do  but  judges  of  record. 

10  Rep.  103  a,  in  a  note  of  the  reporter,  in  Alfride  Denbawd's  case. 

Also,  when  the  matter  of  the  charge  is  pregnant  with  matter  of  law, 
there  ought  to  be  no  wager  of  law,  for  that  were  to  swear  to  the  law ;  a8 
in  debt  against  husband  for  clothes  taken  up  by  the  wife,  the  husband 
shall  not  wage  his  law;  because  it  is  a  point  of  law,  whether  he  be  liable 
or  no,  viz. ;  whether  the  clothes  were  for  necessary  apparel  of  the  wife, 
without  which  he  is  not  liable. 

12  Mod.  671,  Civit.  Loudon  v.  "Wood. 


WAGER  OF  LAW.  3S9 

(D)  In  what  Cases  Law  may  be  waged,  and  in  what  not. 

In  debt  on  an  arbitrament  (it  is  intended  where  the  submission  is  by 
parol)  the  defendant  may  wage  his  law ;  because,  though  the  arbitrators, 
who  are  strangers,  are  concerned,  yet  the  submission  might  be  secret ; 
and  that  is  the  foundation  from  wrhence  the  debt  arises. 

2  Sulk.  083,  Mood  v.  The  Mayor  of  London. 

In  debt  for  an  amerciament  in  a  court-baron,  the  defendant  may  wrage 
his  law.  The  reason  is,  because  the  matter  is  of  small  value  which  con- 
cerns the  lord  only,  transacted  in  pais  which  might  be  without  his  know- 
ledge. But  in  debt  on  a  judgment  in  a  court-baron,  the  defendant  cannot 
wage  his  law  ;  for  the  judgment  could  not  be  but  by  confession  or  verdict, 
'  and  it  was  in  a  proper  court ;  all  which  the  defendant  cannot  by  his  bare 
oath  falsify ;  and  the  authorities  to  the  contrary  are  not  law ;  and  so  it  is 
in  debt  on  a  judgment  in  a  court  of  ancient  demesne. 
2  Salk.  683,  Mood  v.  The  Mayor  of  London. 

In  debt  for  rent  on  a  lease-parol,  the  defendant  cannot  wage  his  law, 
because  his  occupation  is  notorious,  which  is  a  better  reason  than  because 
it  savours  of  the  reality ;  and  so  it  is  in  account  against  a  bailiff  for  the 
same  reason,  his  management  and  transaction  being  notorious. 

2  Salk.  683,  Mood  v.  The  Mayor  of  London. 

In  debt  brought  by  a  jailer  against  his  prisoner  for  meat  and  drink, 
the  defendant,  per  Holt,  cannot  wage  his  law,  not  because  the  jailer  is 
obliged  to  find  him  victuals ;  that  is  not  true,  as  appears  by  Plowd.  68  a ; 
but  because  the  defendant  is  in  durance,  and  the  plaintiff  cannot  take 
security  from  him  for  repayment ;  for  a  bond  will  be  void,  so  that  he  must 
be  content  with  a  promise :  and  he  did  not  deny  the  case  of  9  Rep.  87  b, 
88  a,  which  was  debt  by  a  labourer ;  it  is  but  just  that  the  plaintiff  should 
prove  he  wras  retained,  rather  than  that  the  defendant  should  be  put  to 
wage  his  law. (a) 

2  Salk.  683,  Mood  v.  The  Mayor  of  London,  (a)  The  master  shall  not  wage  his 
law,  because  the  labourer  is  compellable  to  serve  by  the  statute ;  but  it  is  otherwise, 
if  he  be  not  retained  according  to  the  statute.     1  Inst.  295  a. 

But,  if  a  victualler  or  common  innkeeper  bringeth  an  action  for  his 
guest's  victuals  delivered  to  him,  the  guest  may  wage  his  law ;  for  a  vic- 
tualler or  innkeeper  is  not  compellable  to  deliver  victuals  till  he  be  paid 
for  them  in  hand :  and  therewith  agreeth  10  H.  7,  c.  8  a. 

9  Rep.  87  b,  Pinchon's  case. 

In  debt  on  a  by-law  made  by  the  company,  the  defendant  in  a  case 
cited  to  be  in  B.  R.  about  two  years  before,  waged  his  law.  But  Holt, 
C.  J.,  said  it  was,  because  the  counsel  for  the  plaintiff  did  not  challenge 
it :  for  he  wondered  at  it  then.  But  this  is  not  so  strong  as  debt  on  a  by- 
law by  a  corporation  ;  for  this  obliges  all  strangers  without  notice  ;  but 
the  other  only  their  own  members,  till  notice :  And  the  Chief  Justice 
denied  the  case  in  Co.  Ent.  118,  and  the  case  2  Roll.  Abr.  106,  pi.  9. 

2  Salk.  684,  Mood  v.  The  Mayor  of  London. 

Wager  of  law  lies  not  in  quo  minus,  because  the  king's  revenue  is  re- 
motely concerned,  upon  suggestion,  that  the  plaintiff  is  indebted  to  the 
king,  and  less  able  to  pay  him  by  the  defendant's  detainer  of  his  debt. 
Per  Hatsell,  J.,  who  said  this  was  given  as  a  reason  in  Slade's  case. 

4  Rep.  95  b,  in  Slade's  case ;  12  Mod.  671,  The  City  of  London  v.  Wood. 

In  debt  upon  a  penalty  given  by  statute,  the  defendant  shall  not  wage 
his  law. 
1  Inst.  295  a. 

2k2 


390  WAGER    OF   LAW. 

(E)  What  Persons  may  wage  Law,  and  what  not. 

The  very  custom  of  London  excludes  wager  of  law  in  some  actions,  as 
in  debt  for  diet,  1  E.  4,  c.  6,  Bro.  Examination,  18,  the  statute  of  38  E. 
3,  c.  5,  before  which  no  wa^ger  of  law  could  be  against  a  Londoner.  Per 
Hatsell,  J. 

12  Mod.  671,  cites  Bro.  Ley  Gager,  94. 

So,  a  prescription  prevents  wager  of  law,  and  no  man  can  deny  it  upon    - 
oath.     Per  Holt,  C.  J. 

12  Mod.  683,  The  City  of  London  v.  Wood. 

Wager  of  law  was  denied  in  debt  for  scavage  arising  by  prescription, 
and  that  confirmed  by  act  of  parliament. 

2  Vent.  261,  Mayor,  &c.  of  London  v.  Dupester ;  2  Lev.  106,  S.  C.  by  name  of      | 
Mayor,  &e.  of  London  v.  Deputee. 

In  debt  for  a  duty  growing  by  a  by-law,  if  the  by-law  be  authorized  by 
letters  patent,  no  wager  of  law  lies. 
Vent.  261,  The  Mayor,  &c.  of  London  v.  Dupester. 

So  in  case  for  toll  granted  by  letters  patent. 

Vent.  261,  cites  20  H.  7.  In  action  of  debt  for  toll  by  prescription,  you  cannot 
wage  your  law :  per  Hale,  C.  J.,  who  asked  if  they  could  show  a  precedent  where  a 
man  can  wage  his  law  in  an  action  brought  upon  a  prescription  for  a  duty.  1  Mod. 
121,  pi.  26,  Draper  v.  Bridewell. 

Where  a  person  of  quality  intending  a  marriage  with  a  lady,  presented 
her  with  a  jewel,  and  the  marriage  not  taking  effect,  he  brought  an  action 
of  detinue  against  her,  and  she  taking  it  to  be  a  gift,  offered  to  wage  her 
law ;  the  court  was  of  opinion,  that  the  property  was  not  changed  by 
this  gift,  being  to  a  special  intent,  and  therefore  would  not  permit  her  to 
do  it. 

2  Mod.  141,  Beaumont  v. . 

||  In  an  action  of  account,  if  plaintiff  declares  on  a  receipt  by  the 
hands  of  the  defendant,  he  may  wage  his  law,  but  if  by  other  hands  he 
shall  be  ousted  of  his  law. 

Walker  v.  Holiday,  Com.  K.  272;  Wheeler  v.  Home,  Willes,  208. || 

(E)  What  Persons  may  wage  Law,  and  what  not. 

An  alien  shall  wage  his  law  in  that  language  he  can  speak. 
1  Inst.  295  a. 

A  man  outlawed,  or  attainted  in  an  attaint,  or  upon  an  indictment  of 
conspiracy,  or  perjury,  or  otherwise,  whereby  he  becomes  infamous,  shall 

not  wage  his  law. 
1  Inst.  295  a. 

A  man  under  the  age  of  twenty-one  years  shall  not  wage  his  law :  but 
a  feme  covert,  together  with  her  husband,  shall  wage  her  law. 

1  Inst.  295  a.  The  reason  why  an  infant  cannot  wage  law,  is  said  to  be  because 
he  cannot  take  an  oath.     11  II.  6,  40. 

Wheresoever  a  man  is  charged  as  executor  or  administrator,  he  shall 
not  wage  his  law,  for  no  man  shall  wage  his  law  of  another  man's  deeds. 

I  Inst.  295  a. 

So,  where  two  ought  to  have  their  law,  and  one  is  under  age,  both  shall 
be  ousted ;  because  the  infant  cannot,  and  both  ought  to  join  in  plea. 

II  II.  6,  f.  40,  b. 

A  man  who  is  dumb  and  not  deaf,  may  wage  his  law  of  non-summons, 
and  make  it,  and  show  his  assent  by  signs.     Adjudged. 
18  E.  "8,  f.  53. 


• 


WAGER  OF  LAW.  391 

(F)  Against  whom  Wager  of  Law  lies. 

In  an  account,  if  the  defendant  before  auditors  pleads  payment,  or 
other  things  given  in  satisfaction,  the  plaintiff  may  wage  his  law  of  it, 
though  he  be  plaintiff. 

30  E.  3,  f.  4,  b. 

Tenant  who  is  summoned  by  one  summoner  where  there  ought  to  be  two, 
may  wage  his  law,  of  non-summons,  according  to  the  law  of  the  land  ;  but 
vouchee  shall  not  wage  his  law  of  non-summons  upon  the  writ  of  summons. 

Bro.  Disceit,  pi.  11,  cites  50  E.  3,  c.  16. 

Informedon  against  a  feme  who  made  default,  and  grand  cape  issued 
returnable  15  Mich.,  before  which  day  she  took  baron,  and  at  the  day  ap- 
peared and  waged  her  law  of  non-summons  ;  and  the  feme  made  her  law 
alone  without  her  baron,  and  the  writ  abated. 

Bro.  Ley  Gager,  pi.  32,  cites  12  H.  4,  c.  24. 

He  who  is  attainted  of  any  falsity,  or  is  perjured,  shall  not  wage  his  law. 

Bro.  Ley  Gager,  pi.  81,  cites  33  H.  6,  c.  32,  per  Litt. 

In  account  the  defendant  upon  his  account  alleged  tallies  of  the  plaintiff, 
by  which  he  had  received  certain  sums  of  the  money,  and  the  plaintiff  waged 
his  law,  that  they  were  not  his  tallies  ;  and  it  was  admitted ;  and  so  see 
that  the  plaintiff  may  wage  his  law,  and  by  it  shall  charge  the  defendant. 

Bro.  Ley  Gager,  pi.  40,  cites  21  E.  4,  c.  49. 

A  bailiff  may  not  wage  his  law,  but  a  receiver  may. 

Cro.  Eliz.  790,  Shyfield  v.  Barnfield.  Per  Holt,  C.  J.  The  reason  the  book  gives 
is,  because  it  is  in  the  realty,  which  is  as  much  as  to  say,  because  it  is  notorious  to 
the  country  ;  because  the  country  take  notice  of  his  looking  after  the  manor,  and  have 
thereby  an  opportunity  of  knowing  that  he  received  the  rents.     12  Mod.  681. 

A  brought  debt  upon  a  joint  contract  against  B,  C,  D,  and  E — E  ivas 
outlawed,  B,  C,  andD  appeared  by  a  joint  supersedeas.  B  tendered  his 
law,  that  he,  with  the  rest  did  not  owe.  0  and  D  plead  nil  debent  per 
patriam.  It  was  insisted,  that  B  should  not  be  admitted  to  his  law  alone, 
because  they  were  all  charged  as  one  defendant,  being  for  a  joint  debt, 
and  so  they  must  all  answer  together.  But  this  was  held  to  be  unreason- 
able ;  for  if  so,  then  by  joining  others  with  me,  as  joint  defendants,  I 
must  be  subject  to  their  plea,  though  they  would  confess  the  action ;  and 
though  defendants  may  not  sever  in  dilatories,  yet  in  bar  they  may :  And 
after  divers  motions  and  precedents  produced,  B  was  received  to  his  law, 
and  the  plaintiff  nonsuited. 

Hob.  244,  Essington  v.  Bourcher. 

(F)  Against  whom  Wager  of  Law  lies. 
In  an  action  brought  by  the  Prince  of  Wales  the  defendant  shall  wage 

his  law. 
2  Roll.  Abr.  110. 

In  a  debt  by  a  merchant  stranger  it  lies  not. 
Palm%  14,  Godfrey  and  Dixon's  case. 

"Where  one  is  indebted  by  specialty  to  a  man  attainted,  the  king  shall 
have  it,  &c,  contra  if  it  be  without  specialty ;  for  there  the  debtor  may 
wage  his  law  against  the  person  attainted  :  contra  against  the  king,  though 
it  was  upon  contract  only  ;  and  therefore  he  shall  be  in  a  worse  case  than 
he  was  before,  and  so  the  king  shall  not  have  the  debt.  Per  Hamm. 
and  Holt,  quod  non  negatur. 

Bro.  Ley  Gager,  pi.  25,  cites  49  E.  3,  c.  5.     A  man  cannot  wage  his  law  against  the 


392  WAGER  OF  LAW. 

(G)  In  what  Cases  the  Defendant  is  barred  from  waging  Law. 

king.  Bro.  Ley  Gager,  pi.  72,  cites  50  E.  3,  c.  1 ;  4  Rep.  95  b,  in  a  note  of  the  re- 
porter it  is  said,  that  in  every  quo  minus  in  the  Exchequer,  brought  by  the  king's  debtor 
against  one  who  is  indebted  to  him  upon  simple  contract,  the  defendant  shall  not  have 
his  law  for  the  benefit  of  the  king,  as  appears  in  8  H.  5  ;  Ley,  66  ;  10  H.  7,  c.  6,  and 
yet  there  the  king  is  not  party ;  d  fortiori  where  such  debt  or  duty  is  forfeited  to  the 

king,  and  he  is  the  sole  and  immediate  party. For  debt  forfeited  to  ike  king  by 

common  law  no  ley  gager  lies.     Cro.  Car.  187,  Morgan  v.  Green. 

In  a  quo  minus  in  Scaceario  against  him  who  usurped  upon  the  posses- 
sion of  the  king,  which  was  leased  to  the  plaintiff,  so  that  he  could  not 
pay  his  farm  to  the  king,  the  defendant  may  wage  his  law,  as  appears  in 
a  short  note  there,  where  it  is  said,  that  in  4  E.  4,  it  was  adjudged  that 
a  man  may  wage  his  law  in  a  quo  minus;  but  contra  anno  8  H.  5,  tit. 
Ley,  pi.  6Q,  in  Fitz.  which  was  agreed  for  law.     35  H.  8. 

Bro.  Ley  Gager,  pi.  102,  cites  32  H.  6,  c.  24. 

In  debt  by  assignee  of  commissioners  of  bankrupts  the  defendant  pleaded 
nil  debet,  and  waged  his  law :  and  the  court  held  that  he  might,  though  the 
interest  and  power  to  sue  in  his  own  name  be  good  to  the  plaintiff  by  the 
statute  of  bankrupts.  But  otherwise,  if  the  duty  itself  had  been  origi- 
nally due  by  the  statute. 

Noy,  112,  Osborne  v.  Bradshaw,  cites  10  H.  7,  c.  18. 

If  an  infant  be  plaintiff,  the  defendant  shall  not  wage  his  law. 
1  Inst.  295  a. 

An  action  doth  not  lie  against  an  executor  upon  a  concessit  solvere  of 
the  testator  upon  a  special  custom,  per  Rolle,  C.  J.,  for  this  would  be  to 
charge  an  executor  in  an  action  of  debt,  where  he  may  by  the  law  wage 
his  law,  and  an  action  of  debt  lies  not  against  the  executor  upon  a  simple 
contract  made  by  the  testator.     Adjournatur. 

Sti.  199,  Hodges  v.  Jane. 

(G)  In  what  Cases  the  Defendant  is  barred  from  waging  his  Law,  by  having 
examined  the  Plaintiff  or  his  Attorney. 

The  defendant's  right  of  examining  the  plaintiff  or  his  attorney,  is 
founded  on  the  5  H.  4,  c.  8,  by  which  it  is  provided,  That 

To  eschew  mischiefs  which  be  as  well  within  London  as  other  places,  of 
that  divers  feigned  suits  of  debt  have  been  taken  by  the  people  of  the  said 
places  against  divers  people,  surmising  that  they  accounted  before  their  ap- 
prentices, and  sometimes  other  their  servants,  auditors  assigned,  of  divers 
receipts,  duties,  and  contracts  had  betwixt  them,  and  that  they  were  found 
in  arrearages  upon  the  account  in  divers  great  sums,  where  there  was  never 
receipt  nor  duty  betivixt  such  parties,  to  the  intent  to  make  them  against 
whom,  such  suits  were  taken,  to  put  them  in  inquest,  and  to  put  them 
from  the  waging  of  their  law  ;  the  judges  before  ivhom  such  actions  shall 
be  sued  in  cities  and  boroughs  shall  have  power  to  examine  the  attorneys, 
and  others,  and  thereupon  to  receive  the  defendants  to  their  law,  or  to  try 
the  same  by  inquest  after  the  discretion  of  judges. 

If  before  this  statute  a  man  had  entered  into  an  account  before  two  auditors  for  a 
thing  -which  lay  not  in  account,  and  they  found  him  indebted,  upon  which  the  other 
:  brought  writ  of  debt  ;ig;iinst  him,  it  was  no  plea  for  the  defendant,  that  the  matter  lay 
not  in  account ;  for  it  was  his  folly  to  enter  into  the  account ;  and  so  at  the  common 
law  the  defendant  was  without  remedy.  But  now  by  this  statute  he  may  tender  his 
law,  and  pray  that  the  party  be  examined,  whether  it  lies  in  account  or  not,  and  if  it 
be  found  that  it  does  not,  the  defendant  shall  make  his  law  and  go  his  way  ;  but  by  the 
common  law,  the  defendant  ought  to  answer  to  the  debt,  which  is  the  end  of  the  ac- 
count, and  the  judgment  of  the  auditors,  and  the  matter  of  account  is  only  conveyance. 
Fer  Frowike,  Kelw.  82  b,  pi.  3. It  seems,  by  the  meaning  of  this  statute  of  the 


WAGER   OF    LAW.  393 

(G)  In  what  Cases  the  Defendant  is  barred  from  waging  Law. 

examination  of  the  attorney  of  the  plaintiff  in  debt  upon  arrearages  of  account  before 
auditors,  the  wager  of  law  does  not  lie,  but  that  nihil  debet  per  patriam  shall  be  received 
in  debt  upon  arrearages  of  account  before  auditors.  E  eontrd,  50  E.  3,  against  Jailer, 
for  escape  of  one  condemned  before  auditors  assigned.     Dy.  145,  pi.  63,  Wise's  case. 

In  debt  upon  arrears  of  account  the  defendant  tendered  his  law  and 
prayed  that  the  plaintiff  be  examined,  and  so  he  tvas  and  said,  upon  oath 
that  it  is  as  he  has  counted,  by  which  the  defendant  was  compelled  to 
answer  without  his  law :  and  so  see  that  where  the  defendant  prays  that 
the  plaintiff  be  examined  or  sworn,  this  is  peremptory  to  the  plaintiff  in 
this  point,  and  so  is  the  ley  gayer  of  the  part  of  the  defendant,  and  so  is 
the  oath  of  the  plaintiff  in  London  by  the  custom,  where  if  the  defend- 
ant prays  that  the  plaintiff  show  his  declaration,  and  he  do  so,  there  the 
defendant  by  this  shall  be  condemned. 
Bro.  Examination,  pi.  18,  cites  19  H.  6,  c.  43. 

So,  in  debt  upon  arrears  of  account,  defendant  prayed  that  the  plain- 
tiff's attorney  be  examined  if  the  matter  lies  in  account;  and  so  he  was, 
notwithstanding  that  no  issue  was  tendered ;  and  upon  examination  of  the 
attorney,  it  appeared  that  it  was  for  stuff  bought  by  the  defendant  of  the 
plaintiff,  for  which  he  tendered  his  law  and  was  admitted. 

Bro.  Examination,  pi.  15,  cites  14  H.  4,  c.  19.  If  the  attorney  refuses  to  be  exam- 
ined the  defendant  shall  be  admitted  to  his  law.  Bro.  Examination,  pi.  33,  cites  33 
H.  6,  c.  24. 

In  debt  by  tivo  executors,  who  counted  of  arrears  of  account  made  in 
the  time  of  their  testator :  the  defendant  tendered  his  law,  that  he  owed 
them,  and  prayed  that  they  be  examined ;  and  the  opinion  of  the  court 
was  that  they  shall  be  examined  of  another's  deed  :  contra  of  an  attorney  ; 
for  he  may  have  information  of  his  master,  &c.  And  the  cause  of  this 
examination  given  by  the  statute  is,  that  if  it  be  found  upon  examina- 
tion of  the  party  upon  a  book  that  the  matter  does  not  lie  in  account, 
then  the  law  lies ;  and  so  this  case  is  out  of  the  case  of  the  statute  of 
examinations,  by  the  opinion  of  the  court. 

Bro.  Examination,  pi.  5,  cites  3  H.  6,  c.  46,  S.  P. ;  Bro.  Examination,  pi.  6,  cites 
9  H.  6,  c.  8,  S.  P. ;  Ibid.  pi.  7,  cites  9  H.  6,  c.  58.  Where  executors  bring  action,  or 
where  action  is  brought  against  them,  examination  does  not  lie;  for  this  is  to  have  the 
ley  gager  and  executors  cannot  wage  their  law.  Bro.  Examination,  pi.  22,  cites  20  E. 
4,  c.  3,  per  Brian  and  Littleton. — Debt  by  an  executor  upon  arrears  of  account  before 
auditors  in  the  time  of  the  testator,  the  defendant  tendered  his  law,  and  prayed  that  the 
plaintiif  be  examined,  and  tlie  executor  was  examined,  though  it  was  of  another's  deed, 
but  not  precisely,  whether  he  saw  or  heard  of  the  account,  or  was  present  at  it ;  but 
whether  any  matter  which  proves  that  it  lay  in  account,  came  to  his  hands,  and  of  other 
points  at  the  discretion  of  the  justices,  but  not  of  the  truth  of  the  deed  precisely  ;  and 
upon  the  examination  it  was  awarded,  that  the  defendant  answer  without  his  law  ; 
quod  nota.  Bro.  Examination,  pi.  19,  cites  21  II.  6,  c.  54,  55. — But  if  such  action  was 
brought  against  an  executor,  the  plaintiff  shall  be  examined.     Ibid. 


Vol.  X.— 50 


394 


OF   WARRANTY. 


A  warranty  (concerning  freeholds  and  inheritances)  (a)  is  a  covenant 
real  annexed  to  lands  or  tenements,  whereby  a  man  and  his  heirs  are 
bound  to  warrant  the  same,  and  either  upon  voucher,  or  by  judgment  in 
a  writ  of  warrantia  ehartce,  to  yield  other  lands  and  tenements  to  the  value 
of  those  that  shall  be  evicted  by  a  former  title,  else  it  may  be  used  by 
way  of  rebutter. 

1  Inst.  365  a.  /3An  action  of  covenant  will  lie  upon  the  words  of  a  deed  "  will 
warrant  and  defend  the  premises  to  A  B  and  his  heirs  for  ever :"  and  this  from  neces- 
sity, as  otherwise  the  buyer  would  be  without  a  remedy  in  many  cases,  for  the  writ  of 
warrantia  chartce  is  not  in  use.  Ricketts  v.  Dickens,  1  Murph.  343. £f  (a)  There  are 
also  warranties  of  goods  and  chattels  upon  contracts ;  but  warranties  of  lands,  &c, 

only  are  here  spoken  of. Bgg^For  warranties  of  goods  and  chattels,  see  vol.  i.  tit. 

Actions  on  the  Case,  letter  (E).  j3Warranty,  in  its  original  form,  it  is  presumed,  has 
never  been  known  in  the  United  States.  The  more  plain  and  pliable  form  of  covenant 
has  been  adopted  in  its  place.     See  4  Kent,  Com.  457  ;  2  Rawle,  67,  n. ;  9  Serg.  &  R. 

268  ;  11  S.  &  R.  109;   4  Dall.  442  ;   2  Wheat.  45  ;   Bouv.  L.  D.  h.  v.g/ Lord  Coke 

says,  that  the  learning  of  warranties  is  one  of  the  most  curious  and  cunning  learnings 
of  the  law,  but  the  subtlety  out  of  this  learning  is,  as  will  be  shown,  greatly  abridged 
by  the  statute  law. 

For  the  better  consideration  of  this  subject,  we  shall  reduce  it  under 
the  following  heads,  under  which  we  shall  examine, — 

(A)  The  several  Kinds  of  Warranties. 

(B)  To  what  things  a  Warranty  may  be  annexed. 

(C)  What  Words  and  Clauses  in  a  Deed  will  make  a  Warranty. 

(D)  What  shall  be  deemed  a  good  Warranty  in  Deed. 

(E)  What  shall  be  deemed  a  good  Warranty  in  Law. 

(F)  Of  the  Nature  of  a  lineal  Warranty,  and  how  far  it  shall  bind. 

(G)  What  shall  be  deemed  sufficient  Assets  to  make  a  lineal  Warranty  a  Bar. 

(H)  Of  the  Nature  of  a  collateral  Warranty  at  Common  Law,  and  how  far  it  shall 
bar. 

(I)  Of  the  Alterations  introduced  by  the  Statute  Law. 

(K)  What  shall  be  deemed  Warranties  by  Disseisin,  Abatement,  or  Intrusion. 

(L)  Of  the  Effects  of  Warranty  in  Deed. 

(M)  What  Use  may  be  made  of  a  Warranty  in  Deed. 

(N)  Who  may  take  Advantage  of  a  Warranty,  and  against  whom. 

(0)  When  a  Warranty  shall  be  said  to  be  defeated,  determined,  suspended,  or 
avoided. 

(P)  How  Warranties  shall  be  expounded. 

J3(Q)  Of  Warranties  in  the  sale  of  Personal  Chattels. 

1.  Express  Warranties. 

2.  Implied  Warranties.^ 


(A)  The  several  Kinds  of  Warranties. 
Warranties,  in  their  more  general  divisions,  are  of  two  kinds. 
First,  a  warranty  in  deed,  or  an  express  warranty,  which  is  when  a  fine 


OF   WARRANTY.  39a 

(B)  To  what  Things  a  Warranty  may  be  annexed. 

or  feoffment  in  fee,  or  a  lease  for  life  is  made  by  deed,  "which  has  an  ex- 
press clause  of  warranty  contained  in  it,  as  when  a  conusor,  feoffor,  or 
lessor,  covenants  to  warrant  the  land  to  the  conusee,  feoffee,  or  lessee. 
2  Inst.  365. 

Secondly,  a  warranty  in  law,  or  an  implied  warranty,  which  is  when  it 
is  not  expressed  by  the  party,  but  tacite  made  and  implied  by  the  law. 

A  warranty  in  deed  is  either  lineal  or  collateral. 

A  lineal  warranty  is  a  covenant  real,  annexed  to  the  land  by  him  who 
either  was  owner  of  or  might  have  inherited  the  land,  and  from  whom  his 
heir  lineal  or  collateral  might  by  possibility  have  claimed  the  land  as 
heir  from  him  that  made  the  warranty. 

1  Inst.  370. 

A  collateral  warranty  is  made  by  him  that  had  no  right,  or  possibility 
of  right  to  the  land,  and  is  collateral  to  the  title  of  the  land. 

Also,  there  is  a  warranty  which  commences  by  disseisin  or  wrong. 
Lit.  sec.  698. 

Warranties  likewise  may  be  said  to  be  either  general,  viz.,  by  one  and 
his  heirs  to  another  and  his  heirs ;  or  particular,  and  restrained  to  a 
certain  person. 

(B)  To  what  Things  a  Warranty  may  be  annexed. 

A  warranty  may  not  only  be  annexed  to  freeholds,  or  inheritances  cor- 
poreal, which  pass  by  livery,  as  houses  and  lands ;  but  also  to  freeholds  or 
inheritances  incorporeal,  which  lie  in  grant,  as  advowsons ;  and  to  rents, 
commons,  estovers,  and  the  like,  which  issue  out  of  lands  or  tenements : 
and  it  may  not  only  be  annexed  to  inheritances  in  esse,  but  also  to  rents, 
commons,  estovers,  &c,  newly  created.  As  a  man  (some  say)  may  grant 
a  rent,  &c,  out  of  land  for  life,  in  tail,  or  in  fee  with  warranty ;  for  though 
there  can  be  no  title  precedent  to  the  rent,  yet  there  may  be  a  title  prece- 
dent to  the  land  out  of  which  it  issueth  before  the  grant  of  the  rent,  which 
rent  may  be  avoided  by  the  recovery  of  the  land,  in  which  case  the  grantee 
may  help  himself  by  a  warrantia  charts  upon  the  especial  matter.  And 
so  warranty  in  law  may  extend  to  a  rent,  &c,  newly  created ;  and  there- 
fore if  a  rent  newly  created  be  granted  in  exchange  for  an  acre  of  land, 
this  exchange  is  good,  and  every  exchange  implieth  a  warranty  in  law. 
And  so  a  rent  newly  created  may  be  granted  for  owelty  of  partition. 

1  Inst.  366. 

If  a  man  seised  of  a  rent-seek,  issuing  out  of  the  manor  of  Dale,  taketh 
a  wife,  and  the  husband  releaseth  to  the  terre-tenant,  and  warranteth  tene- 
menta  prcedicta,  and  dieth,  and  the  wife  bringeth  a  writ  of  dower  of  the 
rent,  the  terre-tenant  shall  vouch,  for  that  albeit  the  release  enured  by  way 
of  extinguishment,  yet  the  warranty  extendeth  to  it,  and  by  the  warranty 
of  the  land,  all  rents,  &c,  issuing  out  of  the  land,  that  are  suspended  or 
discharged  at  the  time  of  the  warranty  created,  are  warranted  also. 

1  Inst.  366. 

But  a  warranty  doth  not  extend  to  any  lease,  though  it  be  for  many 
thousand  years,  or  to  estates  of  tenant  by  statute  staple,  or  merchant,  or 
elegit,  or  any  other  chattel,  but  only  to  freeholds  or  inheritances.  And 
this  is  the  reason,  that  in  actions  which  lessee  for  years  may  have,  a 
warranty  cannot  be  pleaded  in  bar ;  as,  in  an  action  of  trespass,  or  upon 


396  OF   WARRANTY. 

(C)  What  Words  and  Clauses  in  a  Deed  will  make  a  Warranty. 

the  statute  of  5  R.  2,  and  the  like.     But  in  such  actions,  which  none 
but  a  tenant  of  the  freehold  can  have,  as  upon  the  statute  of  8  H.  6, 
assize,  or  the  like,  there  a  warranty  may  be  pleaded  in  bar. 
1  Inst.  389  a. 

A  warranty  may  be  made  upon  any  kind  of  conveyance,  as  upon  fines, 
feoffments,  gifts,  &c.  Also  a  warranty  may  be  made  by  and  upon  releases  i 
and  confirmations  made  to  the  tenant  of  the  land,  although  he  who  makes 
the  lease  or  confirmation  has  no  right  to  the  land,  &c.  And  yet  some  have 
holden,  that  no  warranty  can  be  raised  upon  a  bare  release  or  confirma- 
tion, without  passing  some  estate,  or  transmutation  of  the  possession.  But 
the  law  is  otherwise ;  for  if  A  be  seised  of  lands  in  fee,  and  B  release  to 
him,  or  confirm  his  estate  in  fee  with  warranty  to  him,  his  heirs  and  as- 
signs, this  warranty  is  good,  and  both  the  party  and  his  assignee  shall  vouch. 

1  Inst.  385  a. 

(C)  What  Words  and  Clauses  in  a  Deed  will  make  a  Warranty. 

The  word  warrantizo,  or  warrant,  is  the  only  apt  and  effectual  word  to 
make  an  express  warranty,  or  a  warranty  in  deed,  and  therefore  this  word 
is  used  in  fines. 

1  Inst.  384. 

And  the  words  defendo,  or  acquitto,  although  they  are  commonly  used 
in  deeds,  yet  of  themselves,  without  the  other,  will  not  make  a  warranty. 
1  Inst.  384 ;  Litt.  sect.  733  ;  5  Rep.  17,  18,  Spencer's  case. 

The  words  dedi  et  coneessi,  or  dedi  only,  in  a  feoffment,  make  a  war- 
ranty, when  an  estate  in  fee  or  inheritance  passes  by  the  deed. 
1  Inst.  384. 

But  the  word  coneessi  only,  or  demisi  et  coneessi,  do  not  maKe  such  a 
warranty,  in  the  case  of  a  freehold  or  inheritance. 

5  Rep.  18,  Spencer's  case. 

And  by  force  of  the  statutes  of  Bigamis,  chap.  6,  dedi  is  made  an  ex- 
press warranty  during  the  life  of  the  feoffor. 

1  Inst.  384 ;  4  Rep.  81,  Noke's  case. 

If  a  man  by  deed  warrants  land  to  J  S  and  his  heirs,  and  the  warrantor 
does  not  bind  his  heirs  to  the  warrantee ;  or  does  not  warrant  to  J  S  and 
his  heirs,  but  to  J  S  and  his  assigns,  these  are  good  warranties. 

Dyer,  42  ;  1  Inst.  383. 

But  if  a  man  makes  a  feoffment  in  fee,  and  warranty  to  the  feoffee 
only,  without  naming  his  heirs,  there  the  warranty  shall  endure  only  for 
life,  because  it  is  taken  strictly.  And  yet  if  the  feoffee  recovers  in  value, 
he  shall  recover  fee-simple,  because  he  loses  fee-simple. 

Dyer,  42. 

If  a  man  makes  a  feoffment  to  one  and  his  heirs,  and  binds  himself  and 
his  heirs  to  warranty  against  all  people,  and  does  not  say  with  certainty  to  ' 
whom,  nor  for  how  long  he  will  warrant,  yet  the  feoffee  will  have  a  fee- 
simple  in  the  warranty,  as  he  had  in  the  land:  but,  if  the  intent  of  the  war- 
ranty appears  plainly  by  express  words,  the  warranty  shall  extend  no 
farther. 

Dyer,  42. 

p  In  Pennsylvania,  Arkansas,  Delaware,  and  Missouri,  the  words  "  grant, 
bargain,  and  sell,"  are  an  implied  covenant  that  the  grantor  has  done  no 


OF   WARRANTY.  397 

(D)  "What  shall  be  deemed  a  good  Warranty  in  Deed. 

act  or  created  any  encumbrance  by  which  the  estate  might  be  defeated, 
but  do  not  create  a  general  warranty. 

Gratz  v.  Ewalt,  2  Binn.  95  ;  Balliot  v.  Bowman,  2  Binn.  98 ;  Fonk  v.  Voneida, 
11  S.  &  R.  109;  Bender  v.  Fromberger,  4  Dall.  440;  3  Penns.  313;  Bouv.  L.  D., 
Grant,  Bargain  and  Sell. 

"Where  there  is  a  general  warranty  that,  at  the  time  of  the  conveyance, 
the  grantor  was  "seised  of  an  indefeasible  estate  in  fee-simple,"  followed 
by  a  special  warranty  against  himself  and  his  heirs,  the  special  warranty 
does  not  control  the  precedent  general  covenant. 

Bender  v.  Fromberger,  4  Dall.  43G.£f 

(D)  What  shall  be  deemed  a  good  Warranty  in  Deed. 

A  warranty  in  deed,  or  an  express  warranty,  as  has  been  said,  is 
created  only  by  the  word  warrant.     And 

It  is  to  be  premised,  that  to  every  good  warranty  in  deed,  in  order 
that  it  may  bar  and  bind,  these  following  circumstances  are  requisite. 

First,  That  the  person  that  warrants  be  a  person  able  ;  for  if  an  infant 
makes  a  feoffment  in  fee  of  land,  and  thereby  binds  him  and  his  heirs  to 
warrant  the  land,  in  this  case,  although  the  feoffment  be  only  voidable, 
yet  the  warranty  is  void. 

1  Inst.  367  b. 

But,  if  a  man  of  full  age  and  an  infant  make  a  feoffment  in  fee  with 
warranty,  this  warranty  is  not  void  in  part,  and  good  in  part ;  but  it  is 
good  for  the  whole  against  the  man  of  full  age,  and  void  as  to  the  infant. 

1  Inst.  367  b. 

Secondly,  That  the  warranty  be  made  by  deed  in  writing ;  for  if  a  man 
makes  a  feoffment  by  word,  and  by  word  binds  him  and  his  heirs  to  war- 
rant the  land,  this  is  not  a  good  warranty. 

So,  if  a  man  gives  land  to  another  by  his  last  will,  and  thereby  binds 
him  and  his  heirs  to  warrant  it ;  this  warranty,  although  the  will  be  in 
writing,  is  void,  because  a  will  in  writing  is  no  deed. 

1  Inst.  386. 

Thirdly,  That  there  be  some  estate  to  which  the  warranty  is  annexed 
that  may  support  it ;  for  if  one  covenant  to  warrant  land  to  another,  and 
make  him  no  estate,  or  make  him  an  estate  that  is  not  good,  and  covenant 
to  warrant  the  thing  granted ;  in  these  cases  the  warranty  is  void. 

10  Rep.  96. 

Likewise,  if  the  estate  to  which  the  warranty  is  annexed  is  determined, 
the  warranty  dependent  on  it  is  determined  likewise.  Thus,  if  a  man 
maketh  a  gift  in  tail,  and  warranteth  the  land  to  him  and  his  heirs,  and 
afterwards  tenant  in  tail  maketh  a  feoffment  and  dieth  without  issue,  he 
shall  not  rebut  the  donor  in  a  formedon  in  reverter,  because  that  the 
estate  to  which  the  warranty  is  annexed  is  determined. 

10  Rep.  96. 

Fourthly,  That  the  estate  to  which  the  warranty  is  annexed,  be  such 
an  estate  as  is  able  to  support  it,  and  therefore  that  it  be  a  lease  for  life 
at  the  least ;  for  if  one  makes  a  lease  for  years  of  land,  and  binds  him- 
self and  his  heirs  to  warrant  the  land ;  this  is  no  good  warranty,  neither 
will  it  have  the  effect  of  a  warranty ;  but  this  may  amount  to  a  covenant, 
on  which  an  action  of  covenant  may  be  brought. 

1  Inst.  378  ;  5  Rep.  17,  Spencer's  case. 

2L 


398  OF    WARRANTY. 

(D)  What  shall  be  deemed  a  good  Warranty  in  Deed. 

Fifthly,  That  the  warranty  descends  upon  him  that  is  heir  of  the  whole 
blood  by  the  common  law  to  him  that  made  the  warranty,  and  not  upon 
another ;  for  if  tenant  in  tail  in  borough  English  discontinues  the  tail, 
and  has  issue  two  sons,  and  the  uncle  releases  to  the  discontinuee  with  i 
warranty,  and  dies ;  this  is  no  good  warranty  to  bind  the  younger  son. 

1  Inst.  12  ;  Litt.  sect.  735.    Because  a  warranty  cannot  go  according  to  the  nature- 
of  tenements  by  the  custom,  &c,  but  only  according  to  the  form  of  the  common  law. 
Litt.  ibid. 

So,  if  in  this  case  tenant  in  tail  discontinues  the  tail  with  warranty, 
&c,  having  two  sons,  and  dies  seised  of  other  lands  in  the  same  borough 
in  fee-simple,  to  the  value  of  the  land  in  tail;  the  younger  son  is  not  i 
barred  by  this  warranty. 

1  Inst.  12 ;  Lit.  735,  and  it  is  there  added,  that  the  younger  son  shall  not  be 
barred,  though  assets  in  fee-simple  descend  to  him  from  his  father. 

So,  if  one  gives  his  land  to  the  eldest  son  and  the  heirs  male  of  his 
body,  the  remainder  to  the  second  son,  &c,  and  the  eldest  aliens  with 
warranty,  having  issue  a  daughter  and  dies ;  this  is  not  a  good  warranty 
to  bar  the  second  son. 

Litt.  sect.  718.  The  reason  is,  because  the  warranty  descended  to  the  daughter  of 
the  elder  son,  and  not  to  the  second  son.    Litt.  ibid. 

So,  if  tenant  in  tail  has  issue  two  daughters  by  divers  venters,  and 
dies,  and  they  enter,  and  a  stranger  disseises  them,  and  one  of  them  re- 
leases all  her  right,  and  binds  her  and  her  heirs  to  warrant  it;  in  this 
case  the  warranty  is  not  good  to  bar  the  sister,  because  they  are  of  half 
blood  only,  and  the  one  cannot  be  heir  to  the  other  according  to  the 
course  of  the  common  law. 

Lit.  737. 

So,  if  two  brothers  be  by  demi-venters,  and  the  eldest  release  with 
warranty  to  the  disseisor  of  the  uncle,  and  dies  without  issue ;  this  is  no 
good  warranty  to  bar  the  younger  brother ;  for  a  warranty,  as  has  been 
said,  must  descend  upon  him  that  is  heir  at  the  common  law  to  him  that 
made  it. 

1  Inst.  387. 

Sixthly,  It  is  necessary  that  he  that  is  heir  do  continue  to  be  so,  and 
that  neither  the  descent  of  the  title  nor  the  warranty  be  interrupted  ;  for 
if  one  binds  him  and  his  heirs  to  warranty,  and  after  is  attainted  of 
treason  or  felony,  and  dies ;  this  warranty  does  not  bind  his  heir. 

Litt.  sect.  745. 

So,  if  tenant  in  tail  be  disseised,  and  after  release  to  the  disseisor  with 
warranty,  and  after  the  tenant  in  tail  be  attainted  of  felony,  and  have 
issue  and  die ;  this  warranty  will  not  bind  the  issue. 

Litt,  sect.  746.  The  reason  is,  for  that  nothing  in  this  case  maketh  a  continuance 
but  the  warranty,  which  cannot  descend  to  the  issue  in  tail,  because  the  blood  between 
the  issue  and  him  that  made  the  warranty  is  corrupt.     Id.  ibid. 

Seventhly,  That  the  estate  of  freehold  that  is  to  be  barred  be  put  to  a 
right  before  or  at  the  time  of  the  warranty  made,  and  that  he  to  whom  the 
warranty  descends  have  then  but  a  right  of  the  land ;  for  a  warranty  will 
not  bar  an  estate  of  freehold  or  inheritance  in  esse,  in  possession,  in  rever- 
sion, or  remainder,  that  is  not  displaced  and  put  to  a  right  before  or  at  the 
time  of  the  warranty  made,  though  after  at  the  time  of  the  descent  of  the 


OF  WARRANTY.  399 

(D)  What  shall  be  deemed  a  good  Warranty  in  Deed. 

warranty,  the  estate  of  freehold  or  inheritance  be  displaced  and  de- 
vested. 

10  Rep.  96,  Seymor's  case. 

And  therefore  if  there  be  a  father  and  son,  and  the  son  have  a  rent- 
service,  suit  to  a  mill,  rent-charge,  rent-seek,  common  of  pasture,  or 
other  profit  apprender  out  of  the  land  of  the  father,  and  the  father  make 
a  feoffment  in  fee  with  warranty,  and  die ;  this  shall  not  bar  the  son  of 
the  rent,  common,  &c. 

10  Rep.  96,  Seymor's  case.  The  reason  is,  for  that  the  son  was  actually  seised  of 
the  rent  or  common  at  the  time  of  the  warranty,  and  he  who  is  in  possession  needeth 
not  put  in  his  claim,  either  to  avoid  the  fine  or  collateral  warranty. 

And  although  the  son,  after  the  feoffment  with  warranty,  and  before  the 

death  of  the  father,  had  been  disseised,  and  so  being  out  of  possession  the 

warranty  had  descended  upon  him,  yet  this  warranty  shall  not  bind  him. 

10  Rep.  96,  Seymor's  case.  Because  the  warranty  at  the  time  of  the  creation  of  it 
did  not  extend  to  any  estate  of  freehold  or  inheritance  in  esse. 

So,  if  my  collateral  ancestor  releases  to  my  tenant  for  life  with  war- 
ranty, and  dies,  and  this  warranty  descends  upon  me ;  this  shall  not  bind 
my  reversion  or  remainder. 

10  Rep.  96,  Seymor's  case. 

But,  if  in  the  case  before,  the  son  be  disseised  of  the  rent,  &c,  and 
affirm  himself  to  be  disseised  by  the  bringing  of  an  assize,  (for  otherwise 
he  shall  not  be  said  to  be  out  of  possession  of  a  rent,  or  the  like,)  and 
after  the  father  release  with  warranty,  and  die ;  in  this  case,  the  collateral 
warranty  shall  bar  and  bind  the  son  of  his  rent,  &c. 

10  Rep.  96,  Seymor's  case. 

And  if  in  the  last  case  my  tenant  for  life  be  disseised,  and  my  ancestor 

release  to  the  disseisor  with  warranty,  and  die ;  this  is  a  good  warranty 

to  bind  and  bar  me. 

10  Rep.  96,  Seymor's  case.  Because  my  reversion,  as  well  as  the  estate  of  the 
tenant  for  life,  was  devested  at  the  time  of  the  warranty  made. 

Eighthly,  That  the  warranty  take  effect  in  the  lifetime  of  the  ancestor, 
and  that  he  be  bound  by  it ;  for  the  heir  shall  never  be  bound  by  an  ex- 
press warranty,  but  where  the  ancestor  was  bound  by  the  same  warranty, 
and  therefore  a  warranty  made  by  will  is  void. 

Litt.  734. 

Ninthly,  That  the  heir  claim  in  the  same  right  that  the  ancestor  does  ; 
for  if  one  be  a  successor  only  in  a  case  of  a  corporation,  he  shall  not  be 
bound  by  the  warranty  of  a  natural  ancestor. 

1  Inst.  370. 

Tenthly,  That  the  heir  that  is  to  be  barred  by  the  warranty  be  of  full 
age  at  the  time  of  the  fall  of  the  warranty ;  for  if  the  ancestor  make  a 
feoffment,  or  a  release  with  warranty,  and  the  heir  at  this  time  be  within 
age,  and  after  he  die,  and  the  warranty  descend  upon  him  within  age ; 
this  warranty  shall  not  bind  him  :  but,  if  he  become  of  age  after  the  war- 
ranty of  the  ancestor,  and  before  his  death,  in  this  case  the  warranty 
may  bar  him ;  therefore  he  must  take  care  not  to  suffer  a  descent  after 
his  full  age,  before  his  entry. 

1  Rep.  140  b,  Chudleigh's  case. 


400  OF  WARRANTY. 

(E)  "What  shall  be  deemed  a  good  Warranty  in  Law. 

Warranties  in  law  are  so  called,  because,  in  judgment  of  law,  they 
amount  to  a  warranty  without  the  use  of  the  word  warrant. 
1  Inst.  384. 

Thus,  the  words  dedi  et  concessit  or  dedi  only,  in  a  feoffment,  make  a  good 
warranty  in  law  to  the  feoffee  and  his  heirs  during  the  life  of  the  feoffor. 
But  not  against  the  heir  of  the  feoffor,  for  the  heir  shall  not  be  bonnden  unto  a 
warranty  made  by  his  father,  unless  he  bind  him  and  his  heirs  to  warranty  by  express 
words  in  the  deed.  F.  N.  B.  134.  [Vide  Gilb.  Ten.  by  Watkins,  note  lvi.]  j8  See 
Ricketts  v.  Dicketts,  1  Murph.  343  ;  S.  C,  1  Car.  Law  Rep.  77  ;  Powell  v.  Lyles,  1 
Murph.  348.tf 

But  the  word  concessi  only  in  a  fine  or  feoffment  does  not  make  a  war- 
ranty in  law. 

A  warranty  in  law  may  be  good  in  its  creation,  although  it  be  without 
deed ;  for  if  a  man  by  his  last  will  and  testament  devises  lands  to  another 
man  for  life,  or  in  tail,  rendering  rent ;  to  this  estate  there  is  a  warranty 
in  law  annexed. 

1  Inst.  386. 

And  although  there  be  an  express  warranty  in  the  deed,  yet  this  does 
not  take  away  the  implied  warranty  of  the  law. 
1  Inst.  384. 

Every  partition  and  exchange  implies  in  it,  and  has  annexed  to  it,  a 
special  warranty  in  law. 
1  Inst.  102,  384. 

If  one  makes  a  gift  in  tail,  or  lease  for  life,  of  land  by  deed  or  without 
deed,  reserving  a  rent,  or  of  a  rent-service  of  deed ;  in  these  cases  there 
is  annexed  an  implied  warranty  against  the  donor  or  lessor,  his  heirs  and 
assigns. 

1  Inst.  334.  The  assignee  likewise  of  lessee  for  life  shall  take  the  benefit  of  this 
warranty  in  law. 

So,  when  dower  is  assigned  to  a  woman,  there  is  a  warranty  in  law  in- 
cluded, which  is  that  the  tenant  in  dower  being  impleaded,  shall  vouch  and 
recover  in  value  a  third  part  of  the  two  parts  whereof  she  is  dowable. 

1  Inst.  384. 

And  this  warranty  in  law  is  of  the  nature  of  a  lineal  warranty,  and 
shall  bind  as  a  lineal  warranty  only,  for  it  never  bars  any  collateral  title. 
1  Inst.  384. 

And  hence  it  is,  that  this  warranty  and  assets  in  some  cases  is  a  good 
bar  ;  as,  if  a  tenant  in  tail  exchanges  for  other  lands  which  are  descended 
to  the  issue,  and  he  has  accepted  of  them,  or  if  not,  that  other  lands  are 
descended  to  him. 

1  Inst.  384. 

But  if  tenant  in  tail  of  lands  makes  a  gift  in  tail,  or  lease  for  life, 
rendering  rent,  and  dies ;  this  is  no  bar. 
1  Inst.  384. 

And  yet  if  other  assets  in  fee-simple  descend,  this  warranty  in  law 
and  assets  is  a  good  bar. 

(F)  Of  the  Nature  of  lineal  Warranty,  and  how  far  it  shall  bind. 

A  warranty  is  called  lineal,  when,  if  no  deed  with  warranty  had  been 
made  by  the  father,  then  the  right  of  the  tenements  should  descend  to 
the  heir,  and  the  heir  should  convey  the  descent  from  his  father,  &c. 

Litt.  sec.  703. 


OF   WARRANTY.  401 

(F)  Of  lineal  Warranty,  and  how  far  it  shall  hind. 

And  it  is  added  by  Lord  Coke,  that  it  is  called  a  lineal  warranty,  not 
because  it  must  descend  upon  the  lineal  heir;  for  be  the  heir  lineal  or 
collateral,  if  by  possibility  he  might  claim  the  land  from  him  that  made 
the  warranty,  it  is  lineal,  having  regard  to  the  warranty  and  title  of  the 
land. 

1  Inst.  370. 

As,  where  a  man  seised  of  lands  in  fee,  maketh  a  feoffment  by  his  deed 
to  another,  and  binds  himself  and  his  heirs  to  warranty,  and  hath  issue 
and  dies,  and  the  warranty  descends  to  his  issue,  this  is  a  lineal  warranty. 

Litt.  sec.  703. 

So,  if  there  be  a  grandfather,  father  and  son,  and  the  grandfather  be 
disseised,  and  the  father  release  to  the  disseisor  being  in  possession  with 
warranty,  &c,  and  die,  and  after  the  grandfather  die ;  this  is  a  lineal 
warranty  to  the  son  :  and  although  in  this  case  the  warranty  descends 
before  the  right,  yet  it  is  a  good  bar. 
Litt.  sec.  706  ;  1  Inst.  371. 

Likewise,  if  there  be  two  brothers,  and  the  father  be  disseised,  and  the 
eldest  brother  release  with  warranty,  and  die  without  issue,  and  after  the 
father  die,  and  the  warranty  descend  to  the  younger  son ;  this  is  a  lineal 
warranty  to  him ;  for  though  the  eldest  son  died  in  the  lifetime  of  the 
father,  yet  he  might  possibly  have  conveyed  the  title  to  his  younger  bro- 
ther, if  no  such  warranty  had  been. 

Litt.  sec.  707. 

And  in  every  case  where  one  demands  an  estate- tail,  if  any  ancestor  of 
the  issue  in  tail,  whether  he  had  possession  of  the  land  or  not,  has  made 
a  warranty,  and  if  the  issue,  that  was  to  bring  a  writ  in  formedon,  may 
or  might  by  possibility  have  conveyed  to  himself  a  title  by  force  of  the 
gift  by  him  that  made  the  warranty ;  this  is  a  lineal  Avarranty,  whereby 
the  issue  in  tail  shall  not  be  barred,  except  he  have  assets  to  him  de- 
scended in  fee-simple. 

Termes  de  la  Ley,  tit.  Garranty. 

As,  if  a  man  be  seised  of  land  of  an  estate-tail  to  him  and  his  heirs  of 
his  body  begotten,  and  make  a  feoffment  of  it,  and  bind  him  and  his  heirs 
to  warrant  it,  and  have  issue,  and  die ;  this  warranty  descending  upon 
the  issue  is  a  lineal  warranty. 

And  if  lands  be  given  to  one  and  the  heirs  male  of  his  body,  and  for 
want  of  such  issue  to  the  heirs  female  of  his  body,  and  the  donee  make 
a  feoffment  with  warranty,  and  have  issue  a  son  and  a  daughter,  and  die  ; 
this  warranty  is  lineal  to  the  son,  and  if  the  son  dies  without  issue  male, 
it  is  a  lineal  warranty  from  the  father  to  the  daughter. 

Litt.  sec.  719. 

But  if  the  brother  in  his  lifetime  release  to  the  discontinuee,  &c,  with 
warranty,  &c,  and  after  die  without  issue ;  this  is  a  collateral  warranty 
to  the  daughter. 

Litt.  sec.  719.  The  reason  is,  because  she  cannot  convey  to  her  the  right  which  she 
hath  by  force  of  the  remainder  by  any  means  of  descent  by  her  brother,  for  that  the 
brother  is  collateral  to  the  title  of  his  sister,  and  therefore  his  warranty  is  collateral. 
Ibid.  J 

If  lands  be  given  to  the  husband  and  wife  and  the  heirs  of  their  two 
bodies  engendered,  and  they  have  issue  a  son,  and  the  husband  discon- 
Vol.  X.— 51  2  l  2 


402  OF    WARRANTY. 

(G)  What  shall  be  deemed  sufficient  Assets,  &c. 

tinue,  and  die,  and  after  the  wife  release  with  warranty,  and  die ;  this  is 
a  lineal  warranty  to  the  son. 

Litt.  714.  The  son  shall  not  be  barred  in  this  case  unless  he  hath  assets  by  descent 
in  fee-simple  by  the  mother,  because  their  issue  ought  to  convey  their  right  as  heirs 
to  father  and  mother  of  their  two  bodies  begotten,  per  formam  doni,  and  therefore  the 
warranty  of  the  father  and  the  warranty  of  the  mother  are  but  lineal  warranties  to 
the  heir.    Ibid. 

And  if  lands  he  given  to  a  man  and  woman  unmarried,  and  the  heirs, 
of  their  two  bodies,  and  they  intermarry,  and  be  disseised,  and  the  hus- 
band release  with  warranty  and  die,  and  after  the  wife  die ;  this  is  a 
lineal  warranty  to  the  issue  for  the  whole. 

1  Inst.  375.  Because  the  issue  must  convey  his  right  as  heir  to  his  father  and 
mother  of  their  two  bodies  engendered,  and  therefore  it  is  collateral  for  no  part.   Ibid. 

And  if  a  father  give  land  to  his  eldest  son  and  the  heirs  male  of  his 
body,  &c.,  the  remainder  to  the  second  son,  &c,  if  the  eldest  son  alien 
in  fee  with  warranty,  &c,  and  have  issue  female,  and  die  without  issue 
male ;  this  is  a  lineal  warranty  to  the  second. 

Litt.  710. 

It  is  a  rule,  as  to  the  lineal  warranties,  that  they  bar  the  right  to  a 
fee-simple  without  assets,  for  he  that  demandeth  fee-simple  by  any  of  his 
ancestors,  shall  be  barred  by  warranty  lineal  which  descendeth  upon  him, 
unless  he  be  restrained  by  some  statute. 

Litt.  c.  711. 

But  it  doth  not  bar  the  right  of  an  estate-tail,  unless  the  heir  have  assets 
by  descent  in  fee-simple  by  the  same  ancestor  that  made  the  warranty. 
Litt.  c.  712. 

Yet  if  the  issue  in  tail  alien  the  assets  descended,  and  die,  the  issue 
of  that  issue  is  not  barred  by  this  warranty  and  assets :  but  if  the  issue, 
to  whom  the  warranty  and  assets  descended,  had  brought  a  formedon, 
and  by  judgment  had  been  barred  by  reason  of  the  warranty  and  assets ; 
in  that  case,  though  he  aliens  the  assets,  yet  the  estate-tail  is  barred  for 
ever. 

1  Inst.  393. 

But  for  the  more  clear  understanding  what  assets  are  requisite  to  bar 
the  right  of  an  entail,  it  will  be  proper  to  consider, 

(G)  What  shall  be  deemed  sufficient  Assets  to  make  a  lineal  Warranty  a  Bar. 

The  assets  requisite  to  make  a  lineal  warranty  a  bar,  must  have  six 
qualities.  First,  they,  must  be  assets  (that  is)  of  equal  value,  or  more,  at 
the  time  of  the  descent.  Secondly,  they  must  be  of  descent,  if  not  by  pur- 
chase or  gift.  Thirdly,  they  must  be  of  assets  in  fee-simple,  and  not  in 
tail,  or  for  another  man's  life.  Fourthly,  they  must  descend  to  him  as 
heir  to  the  same  ancestor  that  made  the  warranty.  Fifthly,  they  must 
be  of  lands  or  tenements,  or  rents  or  services  valuable,  or  other  profits 
issuing  out  of  lands  or  tenements,  and  not  personal  inheritances,  or  an- 
nuities, and  the  like.  Sixthly,  it  must  be  in  estate  or  interest,  and  not 
in  use  or  right  of  actions,  or  right  of  entry ;  for  they  are  no  assets  until 
they  be  brought  into  possession.  But  if  a  rent  in  fee-simple  issuing  out 
of  land  of  the  heir  descend  unto  him,  whereby  it  is  extinct,  yet  this  is 
assets  ;  and  to  this  purpose  hath,  in  judgment  of  law,  a  continuance. 

1  Inst.  374  b.  A  seigniory  in  frankalmoigne  is  no  assets,  because  it  is  not 
valuable,  and  therefore  not  to  be  extended  ;  and  so  it  seemeth  of  a  seigniory  of  homage 
aud  fealty.     But  an  advowson  is  assets.     Id.  ibid. 


OF   WARRANTY.  403 

(II)  Of  the  Nature  of  a  collateral  Warranty  at  Common  Law,  and  how  far  it  is  barred. 

Wherever  the  heir  cannot,  by  any  possibility,  convey  to  himself  a  title 
by  force  of  his  gift  that  made  the  warranty,  then  that  is  a  collateral  war- 
ranty, and  thereby  the  right  of  the  heir  shall  be  barred  without  any  assets. 

Termes  de  la  Ley,  tit.  Garranty. 

As,  if  tenant  in  tail  discontinue  the  tail,  and  have  issue  and  die,  and 
the  uncle  of  the  issue  release  to  the  discontinuee  with  warranty,  &c.,  and 
die  without  issue,  this  is  a  collateral  warranty  to  the  issue  in  tail,  because 
the  warranty  descendeth  upon  the  issue  who  cannot  convey  himself  to 
the  entail  by  means  of  his  uncle. 

Litt.  ace.  709.  The  reason  that  the  warranty  of  the  uncle  having  no  right  to  the 
land  entailed,  shall  bar  the  issue  in  tail,  is,  for  that  the  law  presumeth  that  the  uncle 
would  not  unnaturally  disinherit  his  lawful  heir,  being  of  his  own  blood,  of  that  right 
which  the  uncle  never  had,  but  came  to  the  heir  by  another  means,  unless  he  left  him 
greater  advancement.  1  Inst.  373  a.  [Lord  Chancellor  Cowper  said,  that  "a  col- 
lateral warranty  was  certainly  one  of  the  harshest  and  most  cruel  points  of  the  common 
law ;  because  there  was  not  so  much  as  an  intended  recompense ;  yet  he  could  not 
find,  that  Chancery  had  ever  given  relief  in  it."   10  Mod.  3,  4.J  ]3  See  1  Sumn.  11.  262.^/ 

If  there  be  father  and  two  sons,  and  the  father  be  disseised,  and  the 
younger  son  release  with  warranty  to  the  disseisor,  and  die  without  issue, 
this  is  a  collateral  warranty  to  the  eldest  son,  because  that  of  such  land 
as  was  the  father's,  the  elder  can  by  no  possibility  convey  to  him  the 
title  by  means  of  the  younger  son. 

Litt.  sec.  707. 

Likewise,  if  there  be  father  and  son,  and  the  son  purchase  lands  in 
fee,  and  the  father  of  this  disseise  the  son,  and  alien  to  another  in  fee  by 
deed,  and  by  the  same  deed  bind  him  and  his  heirs  to  warranty,  &c,  and 
the  father  die,  the  son  is  barred  by  this  warranty,  which  is  a  collateral 
warranty,  though  it  descendeth  lineally  from  the  father  to  the  son. 

Litt.  sec.  704.  The  reason  is,  for  that  if  no  such  deed  with  warranty  had  been  made, 
the  son  could  in  no  manner  convey  his  title  from  his  father  to  him,  inasmuch  as  the 
father  had  no  estate  in  right  to  the  land,  but  was  collateral  to  the  title  of  the  land. 
Litt.  sec.  705. 

Also,  if  tenant  in  tail  have  issue  three  sons,  and  discontinue  the  tail  in 
fee,  and  the  middle  son  release  by  his  deed  to  the  discontinuee,  and  bind 
him  and  his  heirs  to  warranty,  and  after  the  tenant  in  tail  die,  and  the 
middle  son  die  without  issue,  this  is  a  collateral  warranty  to  the  eldest 
son,  inasmuch  as  he  can  by  no  means  convey  to  him,  by  force  of  the  tail, 
any  descent  by  the  middle  brother. 

Litt.  sec.  708.  But  if  the  eldest  son  die  without  issue,  the  youngest  brother  mav 
recover,  because  the  warranty  of  the  middle  one  is  lineal  to  the  youngest.    Ibid. 

PA  collateral  warranty  without  assets,  it  seems,  does  not  bind  the  heir. 
Forster's  Lessee  v.  Dugan,  8  Ohio,  87. 

In  Pennsylvania  a  collateral  warranty  descends  upon  the  eldest  son, 
and  not  upon  all  the  heirs. 
Jourdan  v.  Jourdan,  9  S.  &  II.  267.}} 

Many  other  examples  might  be  produced  where  these  collateral  war- 
ranties at  common  law  did  bind  the  right  of  estates  in  fee-simple,  and  also 
of  estates  in  fee-tail.  But  the  law  in  this  respect  has  been  greatly  altered 
by  the  following  statutes :  and  first  by  the  statute  of  Gloucester. 

(I)  Of  the  Alterations  introduced  by  the  Statute  Law. 

Before  the  statute  of  Gloucester  all  warranties  which  descended  to 
them  which  were  heirs  to  those  who  made  the  warranties,  were  bars  to 


404  OF    WARRANTY. 

(I)  Of  the  Alterations  introduced  by  the  Statute  Law. 

the  same  heirs  to  demand  any  lands  or  tenements  against  the  warranties, 
except  the  warranties  which  commenced  by  disseisin.     For  such  war- 
ranty was  no  bar  to  the  heir,  for  that  the  warranty  commenced  by  wrong, 
viz.,  by  disseisin. 
Litt.  sec.  GOT. 

By  this  statute  of  Gloucester  four  things  are  enacted. 

1st,  That  if  a  tenant  by  the  curtesy  alien  with  warranty,  and  die,  this 
shall  be  no  bar  to  the  heir  in  a  writ  of  mort  d 'ancestor  without  assets  in 
fee-simple.  And  if  lands  or  tenements  descend  to  the  heir  from  the 
father,  he  shall  be  barred,  having  regard  to  the  value  thereof. 

1  Inst.  3G5. 

2dly,  That  if  the  heir,  for  want  of  assets  at  that  time  descended,  re- 
cover the  lands  of  his  mother  by  force  of  this  act,  and  afterwards  assets 
descend  to  the  heir  from  the  father,  then  the  tenant  shall  recover  against 
the  heir  the  inheritance  of  the  mother  by  a  writ  of  false  judgment,  which 
shall  issue  out  of  the  record,  to  resummon  him  that  ought  to  warrant,  as 
hath  been  done  in  other  cases,  where  the  heir  being  vouched  cometh  into 
court,  and  pleadeth  that  he  hath  nothing  by  descent. 

1  Inst.  3G5. 

3dly,  That  the  issue  of  the  son  shall  recover  by  a  writ  of  cosinage, 
aiel,  and  besaiel. 
Inst.  3G5. 

And  lastly,  That  the  heir  of  the  wife  after  the  death  of  the  father  and 
mother,  shall  be  barred  of  his  action  to  demand  the  heritage  of  the  mo- 
ther by  writ  of  entry,  which  his  father  aliened  in  the  time  of  his  mother, 
whereof  no  fine  was  levied  in  the  king's  court. 

Likewise,  by  the  11  II.  7,  c.  20.  Where  a  wife  after  her  husband's 
death  shall,  alone,  or  with  her  succeeding  husband,  alien,  lease,  confirm, 
or  discontinue  with  warranty  the  land  she  holdeth  in  dower,  or  in  tail, 
of  the  gift  of  her  former  husband,  or  any  of  his  ancestors,  such  warranty, 
&c,  is  made  void. 

And  lastly,  by  the  4  &  5  Ann.  c.  16,  "All  warranties  which  shall  be 
made  after  the  first  day  of  Trinity  term,  1705,  by  any  tenant  for  life, 
of  any  lands,  tenements,  or  hereditaments,  the  same  descending  or  coming 
to  any  person  in  reversion  or  remainder,  shall  be  void  and  of  no  effect ; 
and  likewise  all  collateral  warranties  which  shall  be  made  after  the  said 
Trinity  term,  of  any  lands,  tenements,  or  hereditaments,  by  any  ancestor 
who  has  no  estate  of  inheritance  in  possession  in  the  same,  shall  be  void 
against  his  heir. 

j3The  statute  of  4  &  5  Anne  has  been  re-enacted  in  New  York,  4  Kent,  Com.  469, 
3d  ed. ;  and  in  New  Jersey,  3  llalst.  106  ;  it  is  in  force  in  Rhode  Island,  1  Sumn.  235, 
and  in  Delaware,  Ilarring.  50.  In  Kentucky  and  Virginia,  it  seems  that  collateral 
warranty  binds  the  heir  to  the  extent  of  assets  descended.  1  Dana,  59.  In  Pennsyl- 
vania, collateral  warranty  of  the  ancestor,  with  sufficient  real  assets  descending  to 
the  heirs,  bars  them  from  recovering  the  lands  warranted.  2  Yeates,  509;  9  S.  &  R. 
275;  Bouv.  L.  D.  Collateral  Warranty.^  { See  4  Dall.  1G8,  Kesselman's  Lessee  v. 
Old.} 

/3Thc  statute  of  4  &  5  Anne,  c.  16,  by  which  all  collateral  warranties 
are  void,  unless  made  by  one  who  has  an  estate  of  inheritance,  does  not 
extend  to  Pennsylvania. 

Eshelman  v.  Hoke,  2  Yeates,  509. £f 


OF  WARRANTY.  405 

(K)  What  shall  be  deemed  Warranties  by  Disseisin,  Abatement,  or  Intrusion. 
Warranties   are   said   to  commence  by  disseisin   in   the  following 

cases :  As, 

Where  there  is  father  and  son,  and  the  son  purchascth  lands,  &c,  and 
letteth  it  to  the  father,  or  any  other  ancestor,  for  term  of  years,  or  at 
will,  and  the  father,  &c,  thereof  by  deed  cnfeoffeth  another  in  fee,  and 
binds  him  and  his  heirs  to  warranty,  and  the  father  dieth,  whereby  the 
warranty  descendeth  upon  the  son,  this  warranty  commences  by  disseisin. 

Litt.  sec.  698. 

In  the  same  manner,  if  tenant  by  elegit,  tenant  by  statute  merchant, 
statute  staple,  guardian  in  chivalry,  or  socage,  or  because  of  nature, 
make  a  feoffment  in  fee  with  warranty ;  this  shall  not  bind  the  heir,  be- 
cause such  warranties  commence  by  disseisin. 

Litt,  sec.  698,  699 ;  1  Inst.  367. 

Also,  if  father  and  son  purchase  lands  to  have  and  to  hold  to  them 
jointly,  &c,  and  after  the  father  alien  the  whole  to  another,  and  bind 
him  and  his  heirs  to  warranty,  &c,  and  after  the  father  die,  this  war- 
ranty, as  to  the  moiety  which  belongs  to  the  son,  commences  by  disseisin. 

Litt.  sec.  700. 

But,  if  the  purchase  were  to  the  father  and  the  son,  and  the  heirs  of 
the  son,  and  the  father  make  a  feoffment  in  fee  with  warranty,  if  the  son 
enter  in  the  life  of  the  father,  and  the  feoffee  re-enter,  and  the  father  die, 
the  son  shall  have  an  assize  of  the  whole.  If  the  son,  however,  had  not 
entered  in  the  life  of  the  father,  then,  for  the  father's  moiety,  it  had  been 
a  bar  to  the  son,  for  that  therein  he  had  an  estate  for  life,  and  therefore 
the  warranty,  as  to  that  moiety,  had  been  collateral  to  the  son ;  and  as 
to  the  son's  moiety,  it  would  be  a  warranty  by  disseisin,  and  so  the  war- 
ranty would  be  defeated  in  part  and  stand  good  in  part. 

1  Inst.  367  b. 

If,  on  the  other  hand,  the  purchase  had  been  to  the  father  and  son, 
and  the  heirs  of  the  father,  then  the  entry  of  the  son  in  the  life  of  the 
father,  in  avoidance  of  the  warranty,  had  not  availed  him,  because  his 
father  lawfully  conveyed  away  his  moiety. 

1  Inst.  367  b. 

If  the  father  be  tenant  for  life,  remainder  to  the  son  in  fee,  and  the 
father  by  covin  and  consent  make  a  lease  for  years,  to  the  end  that  the 
lessee  shall  make  a  feoffment  in  fee  to  whom  the  father  shall  release  with 
warranty,  and  all  this  be  executed  accordingly,  and  the  father  die,  this 
warranty  begins  by  disseisin. 

1  Inst,  365  b. 

So,  if  one  brother  makes  a  gift  in  tail  to  another,  and  the  uncle  dis- 
seises the  donee,  and  enfeoffeth  another  with  warranty,  and  the  uncle 
dieth,  and  the  warranty  descendeth  upon  the  donor,  and  then  the  donee 
dieth  without  issue,  this  warranty  also  begins  by  disseisin. 

1  Inst.  365  b. 

If  the  father,  the  son,  and  a  third  person  are  joint-tenants  in  fee,  and 
the  father  makes  a  feoffment  in  fee  of  the  whole  with  warranty,  and  dieth, 
and  the  son  dieth,  the  warranty  as  to  the  part  of  the  son,  and  the  part 
of  the  third  person,  begins  by  disseisin. 

1  Inst.  367  a.  And  the  third  person  shall  not  only  avoid  the  feoffment  for  his  own 
part,  but  for  the  part  of  the  son. 


406  OF  WARRANTY. 

(L)  Of  the  Effects  of  a  Warranty  in  Deed. 

Also,  if  a  man  who  hath  no  right,  enters  into  lands,  and  makes  feoff- 
ment of  them  with  warranty,  this  commences  by  disseisin. 
1  Inst.  309  b. 

Lord  Coke  enumerates  several  qualities  belonging  to  warranties,  com- 
mencing by  disseisin. 
1  Inst.  300,  307. 

First,  That  the  disseisin  is  generally  done  immediately  to  the  heir  who 
is  bound  by  the  warranty. 

Secondly.  That  the  warranty  and  disseisin  are  simul  and  semel. 

And  yet  if  a  man  commit  a  disseisin  with  intent  to  make  a  feoffment 
in  fee  with  warranty,  although  he  make  the  feoffment  many  years  after 
the  disseisin,  yet  being  done  with  that  intent,  it  shall  be  a  warranty 
commencing  by  disseisin. 

5  Rep.  80,  Fitzherbcrt's  case. 

The  law  is  the  same  with  respect  to  warranties  commencing  by  abate- 
ment or  intrusion,  if  the  abatement  or  intrusion  be  made  with  intent  to 
make  a  feoffment  in  fee  with  warranty,  for  these  also  commence  by  wrong. 

1  Inst.  307  a. 

So,  if  a  tenant  die  without  heir,  and  an  ancestor  of  the  lord  enter  be- 
fore the  entry  of  the  lord,  and  make  a  feoffment  in  fee  with  warranty, 
and  die,  this  warranty  shall  not  bind  the  lord,  because  it  commenceth  by 
wrong,  being  in  the  nature  of  an  abatement. 

1  Inst.  307  a. 

(L)  Of  the  Effects  of  a  Warranty  in  Deed. 

The  effect  of  a  warranty  in  deed  has  been  partly  explained  in  con- 
sidering the  nature  of  the  several  kinds  of  warranty.  It  may  be  neces- 
sary however  to  observe,  that  a  warranty  in  deed  always  bars  the  war- 
rantor himself  of  the  land  so  warranted  for  ever ;  so  that  all  the  present 
and  future  rights  which  he  hath  or  may  have  therein  are  thereby  extinct. 
Therefore, 

If  the  father  be  disseised,  and  the  son  in  his  lifetime  release  all  his 
right  in  the  land  to  the  disseisor,  and  make  a  warranty  of  the  land  in  the 
deed,  and  then  the  father  die,  and  the  right  of  the  land  descend  to  the 
son;  in  this  case,  although  the  release  does  not  bar  the  son,  yet  the 
warranty  bars  him. 
1  Inst.  205  a  and  b. 

For  the  most  part,  likewise,  it  bars  the  heirs  of  him  who  made  the 
warranty,  to  whom  the  said  warranty  descends,  to  demand  the  land 
against  the  said  warranty;  for  if  the  warranty  be  lineal,  it  is,  as  has  been 
shown,  a  bar  of  an  estate  in  fee-simple  without  any  assets,  that  is,  without 
any  other  land  descended  to  him  in  fee-simple  from  the  same  ancestor  that 
made  the  warranty ;  and  with  assets,  it  is  a  bar  of  an  estate  in  tail. 

1  Inst,  374  b,  384. 

If  the  warranty  be  collateral,  it  is,  with  or  without  assets,  a  bar  of  an 
estate  in  fee-simple  or  fee-tail,  and  all  possibility  of  right  thereunto. 
But  a  collateral  warranty  doth  not  give  a  right,  but  only  bindeth  the 
right,  so  long  as  the  warranty  continueth ;  for  if  it  be  determined,  re- 
moved, or  defeated,  the  right  is  revived. 

1  In<t.  372,  374  b. 


OF  WARRANTY.  407 

(M)  What  Use  may  be  made  of  a  Warranty  in  Deed. 

But  neither  the  lineal  nor  collateral  warranty  can  enlarge  an  estate ;  and 
therefore  if  the  lessor  by  deed  releases  to  his  lessee  for  life,  and  warrants 
the  land  to  him  and  his  heir ;  this  does  not  make  his  estate  greater.  Neither 
will  it  bar  titles  of  entry  or  action  in  cases  of  mortmain,  consent  to  a 
ravisher,  mortgage,  or  dower:  and  therefore  if  an  ancestor  of  the  lord  has 
title  to  enter  upon  an  alienation  in  mortmain,  and  he  releases  and  makes  a 
feoffment  with  warranty,  this  warranty  will  neither  bar  him  nor  his  heir. 

10  Rep.  97,  Edward  Seymor's  case ;  1  Inst.  385  b,  389  a. 

As  to  the  warranty  which  commences  by  disseisin,  it  does  not,  as  has 
been  shown,  bar  any  estate  with  or  without  assets. 

No  fine  or  warranty  shall  bar  any  estate  in  possession,  reversion,  or  re- 
mainder, which  is  not  divested  and  put  to  a  right;  for  he  who  has  the 
estate  or  interest  in  him,  cannot  be  put  to  his  action,  entry  or  claim ;  for 
he  has  that  already  which  entry,  action,  or  claim  can  give  him. 

1  Inst.  388  b. 

j3  A  covenant  of  warranty  is  not  broken  without  eviction,  and  this 
must  be  laid  in  the  declaration. 
Clark  v.  M'Anulty,  3  S.  &  R.  364.     See  Paul  v.  Witman,  3  Watts  &  S.  407.0 

(M)  What  Use  may  be  made  of  a  Warranty  in  Deed. 

Where  a  lineal  or  collateral  warranty  is  a  bar,  there,  if  the  party 
be  impleaded  by  him  who  made  the  warranty,  or  his  heirs,  the  party  im- 
pleaded, who  is  tenant  of  the  land,  may  plead  and  show  forth  his  war- 
ranty against  him,  and  demand  judgment,  whether,  contrary  to  his  own 
warranty,  he  shall  be  received  to  demand  the  thing  warranted ;  and  this 
in  pleading  is  called  a  rebutter. 

Termes  de  la  Ley,  tit.  Garranty. 

But  if  the  party  be  impleaded  or  sued  by  another  for  the  land  in  an 
action  wherein  he  may  vouch,  then  he  to  whom  the  warranty  is  made  or 
his  heirs  may  vouch,  that  is,  call  in  the  warrantor  or  his  heirs  to  warrant 
the  land.  And  this  is  an  interpleader  in  the  nature  of  an  action  brought 
by  the  warrantor  against  the  warrantee,  wherein  he  that  vouches,  who  is 
called  the  voucher,  is  demandant,  and  he  that  is  vouched,  who  is  called 
the  vouchee,  is  made  tenant  or  defendant  to  the  action,  and  the  voucher 
is  as  it  were  out  of  the  suit :  and  this  second  tenant,  the  vouchee,  is 
called  the  tenant  by  the  warranty ;  and  hereupon  a  writ  issues  to  the 
sheriff  to  summon  the  vouchee  to  appear,  which  writ  is  called  a  sum- 
moneas  ad  warrantizandum. 

1  Inst.  101,  393. 

If  the  vouchee  appears,  he  must  plead  to  the  voucher  :  and  if  he  shows 
cause  why  he  should  not  warrant,  that  must  be  tried;  and  this  showing 
of  cause  is  called  a  counterplea  to  the  voucher. 

1  Inst.  101,  393. 

But,  if  he  pleads  in  avoidance  of  the  warranty,  it  is  called  a  counter- 
plea  to  the  warranty:  and  if  he  cannot  defend  himself  against  the  war- 
ranty, the  stranger  shall  recover  the  land  demanded  against  the  voucher, 
and  he  shall  recover  as  much!1}  other  land  against  the  vouchee  of  the 
lands  he  has  or  had  at  the  time  of  the  voucher :  and  this  recovery  of 
other  lands  is  called  a  recovery  in  value. 

1  Inst.  101,  393.  I1}  This  recovery  was  only  according  to  the  value  of  the  land  at 
the  time  the  warranty  was  created :  if  the  land  became  of  increased  value  afterwards, 


408  OF  WARRANTY. 

(M)  What  Use  may  be  made  of  a  AVarranty  in  Deed. 

by  the  discovery  of  a  mine,  or  by  buildings,  or  otherwise,  the  warrantor  was  not  to 
render  in  value  according  to  that  state  of  things,  but  as  the  land  was  when  the  war- 
ranty was  made.  4  Dall.  442 ;  3  Mass.  T.  Rep.  543  ;  3  Cain.  112  ;  4  Johns.  Rep.  22, 
and  the  cases  there  referred  to.  Personal  covenants  of  warranty  and  of  seisin  have, 
in  modern  practice,  superseded  the  ancient  warranty:  and  opposite  opinions  have  been 
entertained,  in  different  states  of  the  Union,  with  regard  to  the  proper  measure  of 
damages  in  actions  for  the  breach  of  those  covenants : — whether  it  should  be  commen- 
surate with  the  ancient  warranty  only,  and  therefore  be  the  value  of  the  land  at  the  - 
time  of  the  purchase  (ascertained  by  the  consideration  paid)  with  interest,  or  should 
be  the  value  at  the  time  of  eviction.  The  former  rule  is  adopted  in  New  York.  3  Cain. 
Ill,  Staats  v.  Ex'rs  of  Ten  Eyck :  4  Johns.  Rep.  1,  Pitcher  v.  Livingston  ;  in  Penn- 
sylvania; 4  Dall.  441,  Bender  v.  Fromberger ;  and  in  Virginia;  1  Hen.  &  Mun.  201, 
Lowther  v.  The  Commonwealth  ;  2  Hen.  &  Mun.  164,  Nelson  v.  Matthews ;  and  the 
latter  rule  in  South  Carolina;  1  Bay.  19,  Liber  and  wife  v.  Ex'rs  of  Parsons;  Ibid. 
2G5,  Ex'rs  of  Gaerard  v.  Rivers  ;  and  in  Connecticut,  Kirby,  3.  In  Massachusetts  a 
distinction  is  made  between  the  covenant  of  warranty  and  the  covenant  of  seisin.  The 
principle  with  respect  to  both  is,  that  the  loss  sustained  at  the  time  of  the  breach  of  the 
covenant,  must  be  the  measure  of  damages.  But  as  the  covenant  of  seisin  is  broken  as 
soon  as  the  deed  is  executed,  if  the  grantor  has  not  a  title,  and  the  covenant  of  war- 
rant)/ is  not  broken  until  eviction,  the  measure  of  damages,  in  the  former  case,  is  the 
consideration  paid,  with  interest ;  in  the  latter,  the  value  of  the  land  at  the  time  of 
eviction.      2  Mass.  T.  Rep.  433,  Marston  v.  Hobbs ;   Ibid.  455,  Bickford  v.  Page ; 

3  Mass.  T.  Rep.  543,  Gore  v.  Brazier.  And  the  principle  of  that  distinction  was  also 
advocated  by  Spencer,  J.,  in  Pitcher  v.  Livingston,  ubi  supra.  But  in  that  case,  and 
also  in  those  of  Staats  v.  Ex'rs  of  Ten  Eyck  and  Bender  v.  Fromberger,  though  in  all 
of  them  the  action  was  brought  for  a  breach  of  the  covenant  of  seisin,  yet  the  decisions 
of  the  courts  are  founded  upon  principles  applying  with  equal  force  to  the  covenant 
of  warranty ;  and  the  former  is  considered  as  governed  by  the  same  rule  with  regard 
to  damages  as  the  latter.  And  the  cases  in  Virginia  were  on  covenants  of  warranty. — 
If  there  was  any  fraud  or  concealment,  however,  on  the  part  of  the  vendor,  lie  will 
be  answerable,  in  an  action  on  the  case  for  deceit,  for  all  the  losses  which  may  ensue. 

4  Dall.  441 ;  3  Cain.  Ill  ;  4  Johns.  Rep.  12.— If  the  title  to  part  only  of  the  land  fails, 
the  measure  of  damages,  in  general,  is  the  value  of  that  part  taken  in  proportion  to 
the  price  of  the  whole.  But  under  some  circumstances,  the  relative  value  of  the  land 
lost  will  be  considered.  2  Johns.  Rep.  43,  46,  Mann  and  Toles  v.  Pearson  ;  5  Johns. 
Rep.  49,  Morris  v.  Phelps  ;  2  Hon.  &  Mun.  164,  Nelson  v.  Matthews  ;  1  Bay.  19,  Liber 
and  wife  v.  Ex'rs  of  Parsons. } 

If  the  vouchee  at  the  time  of  the  voucher  and  recovery  has  no  lands 
descended  to  him  to  answer  the  warrantee,  but  has  afterwards  lands 
falling  to  him  by  descent  from  that  ancestor,  then  the  voucher  may  have 
a  resummons,  and  recover  the  land  which  afterwards  falls. 

1  Inst.  101,  393. 

But,  if  the  sheriff  returns  upon  the  summons  that  the  vouchee  is  sum- 
moned, and  he  nevertheless  maketh  default,  then  he  shall  have  a  mag- 
num cape  ad  valentiam,  when,  if  ho  makes  default  again,  the  judgment 
shall  be  given  against  the  voucher,  and  he  shall  recover  over  the  value 
against  the  vouchee:  and  if  the  vouchee  appears  and  then  makes  default, 
the  voucher  shall  have  a  parvum  cape  ad  valentiam,  and  then  if  he  makes 
default,  judgment  shall  be  given  as  before. 

1  Inst.  101,  393. 

But,  if  the  sheriff  upon  the  summons  returns  that  lie  has  nothing 
whereby  he  may  be  summoned,  then  after  writs  of  alias  and  pluries,  a 
writ  called  sequatur  sub  suo  pcriculo,(a)  shall  be  awarded ;  and  if  the 
like  return  bo  made,  the  demandant  shall  have  judgment  against  the 
first  tenant,  but  he  cannot  recover  in  value  against  the  vouchee,  because 
he  was  never  warned,  and  it  appeareth  that  he  hath  nothing. 

(a)  It  is  called  sequatur  sub  siio  periculo,  because  the  tenant  shall  lose  his  land  with- 
out any  recompense  in  value,  unless  he  upon  that  writ  can  bring  in  the  vouchee  to  war- 


OF  WARRANTY.  409 

(N)  Who  may  take  advantage  of  a  Warranty,  &c. 

rant  the  land  unto  him  ;  and  if  at  the  sequaiur  sub  suo  pericvlo,  the  tenant  and  the 
vouchee  make  default,  and  the  demandant  have  judgment  against  the  tenant,  and  after 
bring  a  scire  facias  to  have  execution,  the  tenant  may  have  a  warrantia  chartce ;  and 
if  he  were  impleaded  by  a  stranger,  he  may  vouch  again.  But  if  he  had  judgment 
to  recover  in  value,  he  shall  never  have  a  warrantia  chartce,  nor  vouch  again  ;  for  by 
this  judgment  to  recover  in  value,  he  hath  had  the  benefit  of  the  warranty. 

If  the  vouchee  had  a  warranty  from  some  other  for  the  land,  he  may  de- 
raign,  that  is,  maintain  the  warranty  over,  and  shall  recover  in  value  also 
against  his  vouchee  in  the  same  manner  as  before. 

But  if  the  warrantee  to  whom  the  warranty  is  made,  or  his  heirs,  be 
impleaded  in  an  assize,  or  in  a  writ  of  entry  in  the  nature  of  an  assize, 
in  which  actions  they  cannot  vouch,  then  they  shall  have  a  writ  de  war- 
rantia chartve  against  the  warrantor  who  made  the  warranty,  or  his  heirs. 

F.  N.  B.  34.  If  he  be  impleaded  in  any  action  in  which  he  may  vouch,  then  he 
ought  to  vouch  to  warranty ;  and  if  he  will  not,  he  shall  not  afterwards  have  a  writ 
of  icarrantia  chartce. 

Likewise,  the  warrantee  or  his  heirs  may,  at  any  time  before  they  be 
impleaded  for  the  land,  bring  a  warrantia  chartce  upon  the  warranty  in 
the  deed  against  the  warrantor  or  his  heirs,  and  thereby  all  the  land  the 
heir  of  the  warrantor  has  by  descent  from  the  ancestor  who  made  the 
warranty,  at  the  time  of  the  writ  brought,  shall  be  bound  and  charged 
with  the  warranty,  into  whose  hands  soever  it  goes  afterwards.  So,  if 
the  land  warranted  be  after  recovered  from  the  warrantee,  he  shall  have 
so  much  land  over  again  of  the  other  land  of  the  heir  of  the  warrantor, 
or  of  the  warrantor  himself,  if  he  be  living  :  and  although  the  warrantee 
or  his  heirs  recover  in  this  writ,  yet  upon  occasion  he  may  afterwards 
vouch  the  warrantor  or  his  heirs  notwithstanding. 

F.  N.  B.  34. 

It  is  to  be  observed,  moreover,  that  it  is  good  policy  if  a  man  suspect 

any  thing,  to  bring  this  writ  of  warrantia  chartce  betimes,  because  it  binds 

all  the  lands  of  the  warrantor  from  the  time  of  the  writ  brought,  and  not 

any  of  his  other  land  he  had  before  that  time,  which  are  now  aliened. 

F.  N.  B.  34.  But,  if  a  man  be  vouched,  he  shall  not  render  in  value,  but  of  the 
lands  he  had  at  the  time  of  the  voucher. 

But,  if  a  man  recover  his  warranty  by  writ  of  warrantia  chartce,  and 
have  bounden  the  land  which  the  vouchee  had  at  that  time :  yet,  if  he  be 
afterwards  impleaded  for  that  land  for  which  he  recovered  his  warranty, 
he  ought  to  vouch  him  against  whom  he  recovered  his  warranty,  to  de- 
fend the  land,  if  he  be  sued  in  any  action  wherein  he  may  vouch ;  other- 
wise, he  shall  not  have  advantage  by  recovery  of  his  warranty  in  the  war- 
rantia chartce. 

F.  N.  B.  34. 

And  if  a  man  recover  his  warranty  in  a  warrant  ia  chartce,  and  afterwards 
be  impleaded  in  an  action  in  which  he  cannot  vouch,  as  by  assize  or  by 
a  scire  facias  sued  forth  upon  a  fine,  &c. ;  it  seemeth  he  ought  to  give 
notice  to  him  against  whom  he  hath  recovered  his  warranty  of  the  action, 
and  to  pray  him  to  show  him  what  he  shall  plead  to  defend  the  land. 

F.  N.  B.  34. 

(N)  Who  may  take  Advantage  of  a  Warranty,  and  against  whom. 

All  such  as  are  parties  to  the  warranty,  that  is,  such  as  are  named  in 
the  deed,  shall  take  advantage  of  the  warranty ;  as  if  one  warrant  lands 
Vol.  X.— 52  2  M 


410  OF  WARRANTY. 

(N)  Who  may  take  advantage  of  a  Warranty,  &c. 

to  another,  his  heirs  and  assigns  ;  in  this  case  both  the  heirs  and  assigns 
may  take  advantage  of  it,  and  they  may  both  vouch  or  rebut,  or  have  a 
warrantia  chartce  so  as  they  come  in  in  privity  of  estate ;  for  otherwise 
the  heirs  or  assigns  cannot  vouch,  or  have  a  warrantia  chartce,  but  yet 
they  may,  in  many  cases,  rebut. (a) 

1  Inst.  384  b,  385  a;  5  Rep.  71,  Spencer's  case,     (a)  As  in  disseisin,  abatement, 
intrusion,  usurpation,  or  otherwise,  they  shall  rebut,  by  force  of  the  warranty,  as  a' 
thing  annexed  to  the  land. 

But  herein  a  difference  is  to  be  observed,  when,  in  the  cases  aforesaid, 
he  that  rebutteth  claimeth  under  the  warranty,  and  when  he  that  would  ! 
rebut  claimeth  above  the  warranty,  for  there  he  shall  not  rebut. 

1  Inst.  384  b,  385  a  ;  5  Rep.  71,  Spencer's  case. 

Therefore,  if  lands  be  given  to  two  brethren  in  fee-simple,  with  a  war- 
ranty to  the  eldest  and  his  heirs,  and  the  eldest  die  without  issue,  the 
survivor,  though  he  be  heir  to  him,  shall  neither  vouch  nor  rebut,  nor 
have  a  warrantia  chartse,  because  his  title  to  the  land  is  by  relation  above 
the  fall  of  the  warranty,  and  he  comcth  not  under  the  estate  of  him  to 
whom  warranty  is  made,  as  the  disseisor,  &c.  doth. 

If  a  man  warrant  lands  to  two  men  and  their  heirs,  and  the  one  make 
a  feoffment  in  fee,  yet  the  other  shall  vouch  for  his  moiety. 
1  Inst.  384  b,  385  a ;  5  Rep.  71,  Spencer's  case. 

If  a  man  be  enfeoffed  with  warranty  to  him,  his  heirs  and  assigns,  and 
he  make  a  gift  in  tail,  the  remainder  in  fee,  and  the  donee  make  a  feoff- 
ment in  fee,  that  feoffee  shall  not  vouch  as  assignee,  because  no  man 
shall  vouch  as  assignee  but  he  that  cometh  in  in  privity  of  estate  ;  but  he 
must  vouch  his  feoffor,  and  he  vouch  as  assignee  ;  but  such  an  assignee 
may  rebut. 

1  Inst.  384  b,  385  a ;  5  Rep.  71,  Spencer's  case. 

So,  if  the  warranty  be  made  to  a  man  and  his  heirs  without  this  word 
(assigns),  yet  the  assignee,  or  any  tenant  of  the  land,  may  rebut. 

If  a  man  enfeoff  A  and  B  to  have  and  to  hold  to  them  and  their  heirs, 
with  a  clause  of  warranty,  'prseclictis  A  et  B  et  eorum  hceredibus  et  assig- 
natis  ;  in  this  case,  if  A  die,  and  B  survive  and  die,  and  the  heir  of  B 
enfeoff  C,  he  shall  vouch  as  assignee ;  and  yet  he  is  but  the  assignee  of 
the  heir  of  one  of  them  ;  for  in  judgment  of  law,  the  assignee  of  the  heir 
is  the  assignee  of  the  ancestor ;  and  so  the  assignee  of  the  assignee  shall 
vouch  in  infinitum,  within  these  words  (his  assigns). 

1  Inst.  384  b. 

If  a  man  enfeoffeth  A  to  have  and  to  hold  to  him,  his  heirs  and  assigns, 
and  A  enfeoffeth  B  and  his  heirs,  and  B  dicth,  the  heir  of  B  shall  vouch 
as  assignee  of  A.  So  that  heirs  of  assignees,  and  assignees  of  assignees, 
and  assignees  of  heirs,  arc  within  this  word  (assigns). 

1  Inst.  384  li. 

But  those  who  are  not  named  for  the  most  part  shall  not  take  advantage 
of  the  warranty ;  and  therefore  if  land  be  warranted  to  J  S  without  the 
word  (heirs),  his  heirs  shall  not  vouch ;  and  regularly,  if  he  warrant  land 
to  a  man  and  his  heirs  without  naming  assigns,  his  assignee  shall  not 
vouch.  Yet,  if  the  father  be  enfeoffed  with  warranty  to  him  and  to  his 
heirs,  and  the  father  enfeoff  his  eldest  son  with  warranty,  and  die,  the  law 
giveth  the  son  advantage  of  the  warranty  made  to  his  father,  because,  by 
act  of  law,  the  warranty  between  the  father  and  the  son  is  extinct. 
Unst.  381b. 


OF  WARRANTY.  411 

(N)  Who  may  take  advantage  of  a  Warranty,  <fcc. 

The  warranty  wrought  by  the  word  dedi,  and  the  warranty  annexed  to 
an  exchange,  partition,  &c.,  do  not  extend  to  assignees.  But  yet  in 
cases  of  exchange,  and  of  warranties  by  the  word  dedi,  the  assignee  shall 
rebut. 

1  Inst.  384,  a  and  b. 

If  a  man  make  a  feoffment  in  fee  with  warranty  to  him,  his  heirs  and 
assigns,  by  deed,  and  the  feoffee  enfeoff  another  by  parol,  the  second 
feoffee  should  vouch,  or  have  a  wctrrantia  cliartce,  as  assignee,  although 
he  hath  no  deed  of  the  assignment ;  because  the  deed  comprehending  the 
warranty  doth  extend  to  the  assignees  of  the  land,  and  he  is  a  sufficient 
I  assignee,  although  he  hath  no  deed. 
1  Inst.  385  b. 

If  a  man  make  a  feoffment  in  fee  to  A,  his  heirs  and  assigns,  and  A 
enfeoff  B  in  fee,  who  re-enfeoffeth  A ;  he  or  his  assigns  shall  never  vouch, 
for  A  cannot  be  his  own  assignee.  But  if  B  had  enfeoffed  the  heir  of  A, 
he  might  vouch  as  assignee ;  for  the  heir  of  A  may  be  assignee  to  A, 
inasmuch  as  he  claimeth  not  as  heir 

1  Inst.  385  b. 

If  one  makes  a  feoffment  to  two,  their  heirs  and  assigns,  and  one  of 
them  makes  a  feoffment  in  fee,  this  feoffee  in  this  case  shall  not  take 
advantage  as  assignee. 

1  Inst.  385  b. 

But  an  assignee  of  part  of  the  land  shall  take  advantage  of  a  war- 
ranty ;  as, 

If  a  man  makes  a  feoffent  of  two  acres  with  warranty  to  him,  his  heirs 
and  assigns,  and  the  feoffee  makes  a  feoffment  of  one  acre  of  it  to  another, 
in  this  case  the  second  feoffee  shall  take  advantaKe  of  the  warranty  as 
assignee. 

1  Inst.  385  a. 

Therefore,  there  is  a  difference  between  the  whole  estate  in  part,  and 
part  of  the  estate  in  the  whole,  or  in  any  part ;  for  if  a  man  has  a  warranty 
to  him,  his  heirs  and  assigns,  and  he  makes  a  lease  for  life  or  gift  in  tail ; 
in  these  cases  the  lessee  or  donee  shall  not  take  advantage  of  the  warranty 
as  assignee,  because  they  have  not  the  estate  in  fee-simple,  whereunto 
the  warranty  was  annexed ;  but  they  may  vouch  the  lessor  or  donor,  and 
by  this  means  take  advantage  of  the  warranty. 

1  Inst.  385  a. 

But  if  a  lease  for  life  be  made,  the  remainder  in  fee,  such  a  lessee  may 
vouch  as  assignee,  because  the  whole  estate  is  out  of  the  lessor,  and  the 
particular  estate  and  the  remainder  do  in  judgment  of  law,  to  this  purpose, 
make  but  one  estate. 

1  Inst.  385  a. 

If  a  man  enfeoffs  a  woman  with  warranty,  and  they  intermarry  and  are 
impleaded,  and  upon  default  of  the  husband,  the  wife  is  received,  in  this 
case  she  may  vouch  her  husband,  ct  sic  e  converso,  if  a  woman  enfeoffs  a 
man  with  warranty,  and  they  intermarry  and  are  impleaded,  the  husband 
in  this  case  shall  vouch  himself  and  the  wife. 

1  Inst.  390. 

He  who  comes  into  land  merely  by  act  of  law  in  the  post,  as  the  lord  by 
escheat  or  the  like,  shall  never  take  advantage  of  a  warranty  ;  and  there- 


412  OF  WARRANTY. 

(N)  Who  may  take  advantage  of  a  Warranty,  &c. 

fore  if  tenant  in  dower  enfeoffs  a  villein  with  warranty,  and  the  lord  of 
the  villein  enters,  or  a  feoffment  be  to  a  bastard  with  warranty,  and  he 
dies  without  issue,  and  the  lord  enters  by  escheat,  the  lord  shall  never  i 
take  advantage  of  these  warranties. 

3  Rep.  02  and  G3,  Lincoln  College  case. 

But  it  is  otherwise,  where  a  man  comes  to  the  land  by  limitation  of  use,- 1 
or  by  common  recovery,  which  is  the  act  of  the  party ;  for  if  tenant  in 
tail  being  in  of  another  estate,  that  is  by  disseisin,  or  feoffment  of  a  dis- 
seisor, suffers  a  common  recovery,  and  a  collateral  ancestor  of  the  tenant 
in  tail  releases  with  warranty  to  the  recoveror,  and  after  the  recoveror 
makes  a  feoffment  to  uses,  which  are  executed  by  the  statute  of  27  H.  |; 
8,  and  after  the  collateral  ancestor  dies ;  in  this  case  the  terre-tenants 
may  take  advantage  of  the  warranty  by  way  of  rebutter,  although  the 
estate  be  transferred  in  the  post. 

3  Rep.  02  and  G3,  Lincoln  College  case. 

So,  if  he  to  whom  the  warranty  is  made  suffers  a  common  recovery, 
and  after  the  ancestor  dies ;  the  recoveror  may  take  advantage  of  the 
warranty  by  way  of  rebutter ;  for  any  man  that  has  the  possession  of 
land,  although  he  has  no  deed  to  show  how  he  got  possession  of  it,  or 
how  he  is  assignee,  may  rebut  the  demandant,  and  so  bar  him,  and  defend 
his  own  possession. 

3  Rep.  02  and  03,  Lincoln  College  case. 

Therefore,  tenant  by  the  curtesy,  donee  in  tail,  who  is  in  of  another  estate, 
an  assignee  by  force  of  a  warranty  made  to  a  man  and  his  heirs,  feoffee 
of  a  donee  in  tail,  may  rebut  and  bar  the  demandant  by  the  warranty. 
3  Rep.  02  and  03,  Lincoln  College  case. 

If  one  enfeoffs  another  of  an  acre  of  ground  with  warranty,  and  has 

issue  two  sons,  and  dies  seised  of  another  acre  of  land  in  the  nature  of 

borough  English ;  in  this  case,  although  the  warranty  descends  upon  the 

eldest  son  only,  yet  both  the  sons  may  be  vouched;  one  as  heir  to  the 

warranty,  the  other  as  heir  to  the  land. 

1  Inst.  370.  If  he  should  vouch  the  eldest  sou  only,  he  could  not  have  the  fruit  of 
his  warranty  ;  that  is,  a  recovery  in  value ;  and  he  cannot  vouch  the  youngest  son 
only,  hecausc  he  is  not  heir  at  common  law,  upon  whom  the  warranty  descends. 

So  it  is  also  of  heirs  in  gavelkind,  the  eldest  shall  be  vouched  as  heir 
to  the  warranty,  and  the  rest  in  respect  to  the  inheritance. 
1  Inst.  370. 

In  like  manner,  the  heir  at  the  common  law,  the  heir  of  the  part  of 
the  mother  shall  be  vouched,  or  the  heir  at  common  law  may  be  vouched 
alone  at  the  election  of  the  tenant. 

1  Inst.  370. 

The  heir  likewise  at  common  law  shall  be  vouched  with  the  heir  in 
borough  English. 
1  lust.  370. 

The  bastard  also  shall  be  vouched  with  a  mulier. 

If  a  man  dies  seised  of  certain  lands  in  fee,  having  issue  a  son  and  a 
daughter  by  one  venter,  and  a  son  by  another,  and  the  eldest  son  enters, 
and  dies,  and  the  land  descends  to  the  sister;  in  this  case,  the  warranty 
descends  on  the  son,  and  he  may  be  vouched  as  heir,  and  the  sister  also 
may  be  vouched  as  heir  to  the  land. 

1  Inst.  370. 


OF  WARRANTY.  413 

(0)  When  a  Warranty  shall  bo  said  to  be  defeated,  &c. 

If  two  make  a  feoffment  with  warranty,  and  one  of  them  dies,  the  sur- 
vivor shall  not  be  charged  alone  with  the  warranty,  but  the  heir  of  him 
that  is  dead  shall  be  charged  also. 

1  Inst.  386  b.  But,  if  they  are  jointly  bound  in  an  obligation,  the  survivor  only 
shall  be  charged. 

Likewise,  if  two  are  bound  to  warrant  land,  and  both  of  them  die,  the 
heirs  of  both  of  them  ought  to  be  vouched,  and  shall  be  equally  charged. 

3  Rep.  14,  Sir  Win.  Herbert's  case. 

If  the  heir  be  vouched  in  the  award  of  three  several  persons,  the  one 
of  them  only  shall  not  be  charged,  but  they  shall  be  charged  equally. 

3  Rep.  14,  Sir  Wm.  Herbert's  case. 

If  a  woman,  an  heiress  of  the  disseisor,  enfeoffs  me  with  warranty,  and 
after  she  is  married  to  the  disseisee ;  in  this  case  I  may  take  advantage 
of  this  warranty  against  the  disseisee,  and  rebut  him  upon  it,  if  he  sues 
me  for  the  land. 

1  Inst.  365  b. 

So,  if  the  husband  and  wife  sue  me  for  the  land  of  the  wife,  and  I 
have  a  warranty  of  a  collateral  ancestor  of  the  husband's,  which  descended 
to  the  husband ;  I  may  make  use  of  this  to  bar  the  husband  and  wife. 

1  Inst.  365  b. 

(0)  When  a  Warranty  shall  be  said  to  be  defeated,  determined,  suspended,  or 

avoided. 

When  a  warranty  is  made  to  a  man  upon  an  estate  which  he  then  had, 
if  the  estate  be  defeated  the  warranty  is  defeated  :  and  a  warranty  lineal 
or  collateral  may  be  defeated,  determined,  or  avoided,  in  all  or  in  part, 
and  this  is  sometimes  by  matter  in  law  and  sometimes  by  matter  in  deed. 

Litt.  sec.  741 ;  1  Inst.  393  a  and  b. 

If  an  estate-tail,  to  which  a  warranty  is  annexed,  be  spent,  the  war- 
ranty is  determined :  or,  if  a  man  make  a  gift  in  tail  with  warranty,  and 
the  donee  afterwards  make  a  feoffment,  and  die  without  issue,  the  war- 
ranty is  gone. 

Litt.  sec.  741 ;  1  Inst.  393  a  and  b. 

So,  if  tenant  in  tail  discontinue  the  tail,  and  the  discontinuee  be  dis- 
seised, or  make  a  feoffment  on  condition,  and  a  collateral  ancestor  of  the 
issue  release  to  the  disseisor  or  feoffor  on  condition,  with  warranty,  and 
after  the  discontinuee  enter  upon  the  disseisor,  or  on  the  feoffee,  for  the 
condition  broken,  in  this  case  the  warranty  made  by  the  collateral  an- 
cestor is  gone. 

1  Inst.  395  a  and  b. 

Likewise,  if  a  seigniory  be  granted  with  warranty,  and  the  tenancy 
escheat,  so  that  the  seigniory  is  extinct,  consequently,  the  warranty, 
which  was  annexed  to  it,  is  defeated. 

1  Inst.  392  b. 

If  the  father  makes  a  feoffment  to  his  eldest  son,  and  dieth,  and  the 
warranty  descends  upon  the  son,  the  warranty  is  extinct. 

1  Inst.  384  b.  But  if  the  father  had  been  enfeoffed  with  warranty  to  him  and  his 
heirs,  the  son,  as  has  been  shown,  might  take  advantage  of  the  warranty  made  to  his 
father. 

If  tenant  in  tail  makes  a  feoffment  to  his  uncle,  and  the  uncle  after- 

2m2 


\ 


414  OF  WARRANTY. 

(0)  When  a  Warranty  shall  be  said  to  be  defeated,  &c. 

wards  makes  a  feoffment  in  fee  with  warranty  to  another,  and  after  the 
feoffee  of  the  uncle  doth  re-enfeoff  the  uncle  again  in  fee,  and  after  the 
uncle  enfeoffeth  a  stranger  in  fee  without  warranty,  and  dieth  without 
issue,  and  the  tenant  in  tail  dieth,  the  warranty  made  to  the  first  feoffee 
is  hereby  defeated. 

Litt.  sec.  743.  Because  the  uncle  took  back  to  him  as  great  an  estate  from  his  first 
feoffee  to  whom  the  warranty  was  made,  as  the  same  feoffee  had  from  him  ;  and  if  the 
warranty  should  stand,  then  the  uncle  would  warrant  to  himself,  which  cannot  be. 

So,  if  the  uncle  makes  the  warranty  to  the  feoffee,  his  heirs  and  assigns, 
and  takes  back  an  estate  in  fee,  and  after  enfeoff  another,  yet  the  war- 
ranty is  defeated,  because  he  cannot  be  assignee  to  himself. 

1  Inst.  390. 

But  if  one  makes  a  feoffment  with  warranty  to  the  feoffee,  his  heirs 
and  assigns,  and  the  feoffee  re-enfeoffs  the  feoffor  and  his  wife,  or  the 
feoffor  and  a  stranger ;  in  these  cases  the  warranty  is  not  defeated,  but 
continues  still. 

1  Inst.  390. 

So,  if  two  make  a  feoffment  with  warranty  to  one,  his  heirs  and  assigns, 
and  the  feoffee  re-enfeoff  one  of  the  feoffors ;  in  this  case  the  warranty 
is  not  gone. 

1  Inst.  390. 

And  if  in  the  first  case  before  put  by  Littleton,  sec.  743,  the  feoffee 

makes  an  estate  to  his  uncle  in  tail  or  for  life,  saving  the  reversion,  or  a 

release  for  life,  the  remainder  over,  &c,  in  this  case  the  warranty  is  only 

suspended. 

Litt.  sec.  744 ;  1  Inst.  390.  But  it  is  otherwise,  where  the  uncle  hath  as  great  estate 
in  tli3  land  of  the  feoffee  to  whom  the  warrant}' was  made,  as  the  feoffee  hath  himself. 

Also,  if  the  uncle  after  such  feoffment  with  warranty,  or  release  with 
warranty,  be  attainted  or  outlawed  of  felony;  hereby  the  warranty  is 
gone ;  and  although  he  afterwards  obtain  his  pardon,  yet  the  warranty 
is  not  revived. 

Litt.  sec.  745  ;  1  Inst.  391. 

Also,  if  tenant  in  tail  be  disseised,  and  after  make  a  release  to  the  dis- 
seisor with  warranty  in  fee,  and  after  the  tenant  in  tail  be  attaint  or  out- 
lawed of  felony,  and  have  issue  and  die,  in  this  case  the  issue  in  tail  may 
enter  upon  the  disseisor  ;  for  nothing  makes  a  discontinuance  in  this  case 
but  the  warranty,  and  the  warranty  cannot  descend  to  the  issue  in  tail, 
because  the  blood  is  corrupt  between  him  that  made  the  warranty  and 
the  issue :  and  if  tenant  in  tail  should  obtain  hi3  pardon,  the  warranty, 
as  has  been  said,  would  not  revive. 

Litt.  sec.  746,  747 ;  1  Inst.  391. 

But  if  tenant  in  tail  at  the  time  of  his  attainder  had  no  issue,  and 
after  the  obtaining  of  his  pardon  had  issue,  that  issue  would  be  bound  by 
the  warranty. 

1  Inst.  392  a. 

If  a  partition  bo  made  by  judgment  upon  a  writ  of  partitione  facienda, 
by  force  of  the  statute  of  31  II.  8,  this  does  not  defeat  the  warranty,  be- 
cause by  writ  they  are  compellable  by  the  statute  to  make  partition. 

G  Hep.  12,  Morricc's  case. 

But,  if  a  feoffment  with  warranty  be  made  to  two  or  more,  and  they  being 


OF    WARRANTY.  415 

(0)  When  a  Warranty  shall  be  said  to  be  defeated,  &.c. 

joint-tenants,  afterwards  by  deed  make  partition  ;  by  this  the  warranty 
is  determined ;  for  though  they  were  compellable  by  writ  to  make  parti- 
tion, yet  since  they  have  not  pursued  the  statute  by  making  partition  by 
writ,  the  warranty  is  gone. 

G  Rep.  12,  Morrice's  case. 

So,  if  there  be  two  joint-tenants,  and  one  of  them  disseises  the  other, 
and  he  that  disseises  recover  in  an  assize,  and  have  judgment  to  hold  in 
severalty;  hereby  the  warranty  is  determined. 

6  Rep.  12,  Morrice's  case. 

As  warranties  may  be  defeated  and  extinguished  by  matter  in  law,  so 
likewise  they  may  be  discharged  or  defeated  by  matter  in  deed :  and  this 
in  three  several  ways. 

1  Inst.  392  b. 

If  the  party  that  has  the  warranty,  or  the  estate  to  which  the  warranty 
is  annexed,  releases  to  him  that  is  bound  to  warrant  all  warranties,  or  all 
covenants  real,  or  all  demands ;  by  either  of  these  releases  the  warranty 
is  gone. 

Litt.  sec.  748. 

For,  if  one  enfeoffs  three  with  warranty  to  them  and  their  heirs,  and 
one  of  them  releases  to  one  of  the  other  two ;  hereby  the  warranty  is 
gone  for  that  part.  But,  if  one  of  them  releases  to  the  other  two,  in 
this  case  the  warranty  is  not  gone,  but  continues,  and  they  may  vouch 
upon  it. 

1  Inst.  385. 

If  tenant  in  tail  enfeoffs  his  uncle,  who  enfeoffs  another  in  fee  with 
warranty,  and  the  feoffee  releases  the  warranty  to  his  uncle :  thereby  the 
warranty  is  extinct. 

1  Inst.  390. 

But,  if  a  gift  in  tail  be  made  with  warranty,  in  this  case  a  release  made 
by  the  tenant  in  tail  of  the  warranty  will  not  extinguish  it. 

1  Inst.  390. 

If  two  make  a  feoffment  in  fee,  and  warrant  the  land  to  the  feoffee  and 
his  heirs,  and  the  feoffee  releases  the  warranty  to  one  of  the  feoffors ;  this 
does  not  determine  the  warranty  of  the  other  as  to  the  moiety. 

1  Inst.  393. 

So  if  one  enfeoffs  two  with  warranty,  and  one  of  them  releases  the 
warranty ;  this  does  not  extinguish  the  warranty  for  the  other  moiety, 
but  it  continues  still. 

1  Inst.  393. 

If  one  warrants  land  to  two  men  and  their  heirs,  and  one  of  them 
makes  a  feoffment  in  fee  ;  hereby  the  warranty  is  not  determined,  but  the 
other  may  vouch  for  his  moiety. 

1  Inst.  385. 

As  warranties  may  be  defeated  in  the  whole,  so  they  may  be  defeated 
as  to  part  of  the  benefit  that  may  be  taken  of  the  same,  as, 

He  who  has  a  warranty  may  make  a  defeasance  not  to  take  any  benefit 
by  way  of  voucher :  in  the  like  manner  that  he  shall  take  no  advantage 
by  way  of  warrantia  chartce,  or  by  way  of  rebutter. 
Inst.  393  a. 


416  OF   WARRANTY. 

(P)  How  Warranties  shall  be  expounded. 

If  the  parties,  between  whom  the  warranty  is,  intermarry,  hereby  the 
warranty  is  suspended  during  the  coverture  in  some  cases. 
1  Inst,  390. 

If  tenant  in  tail  makes  a  feoffment  in  fee  with  warranty,  and  disseises 
the  discontinuee,  and  dies  seised ;  this  suspends  the  warranty. 
1  Inst.  390. 

In  some  special  cases  there  shall  be  no  recoveries  in  value  upon  one, 
warranty;  as, 

If  a  disseisor  gives  lands  to  the  husband  and  wife,  and  to  the  heirs  of 
the  husband,  the  husband  aliens  in  fee  with  warranty,  and  dies,  the  wife 
brings  a  cui  in  vita,  the  tenant  vouches  and  recovers  in  value,  if  after 
the  death  of  the  wife  the  disseisee  brings  a  prcecipe  against  the  alienee,  he 
shall  vouch  and  recover  in  value  again. 

1  Inst,  393  a. 

So  it  is,  where  the  wife  brings  a  writ  of  dower  against  the  alienee,  he 
shall  recover  in  value  again  upon  the  same  warranty. 
1  Inst.  393  a. 

And  it  is  in  the  same  manner  if  a  man  be  seised  of  a  rent  by  a  de- 
feasible title,  and  release  to  the  tenant  of  the  land  all  his  right  in  the 
land,  and  warrant  the  land  to  him  and  his  heirs ;  if  he  be  impleaded  for 
the  rent,  he  shall  vouch  and  recover  in  value  for  the  rent ;  and  if  he  be 
impleaded  for  the  land,  he  shall  vouch  and  recover  in  value  again  for 
the  land. 

Inst.. 393  a. 

But  in  these  and  the  like  cases,  the  reason  is  in  respect  of  the  several 
estates  recovered,  but  for  one  and  the  same  estate  he  shall  never  recover 
but  once  in  value ;  and  though  the  land  recovered  in  value  be  evicted, 
yet  he  shall  never  take  benefit  of  the  warranty  after. 

1  Inst.  393  a. 

A  warranty  also  may  lose  its  force  by  taking  benefit  or  making  use 
thereof;  for  after  a  man  has  once  taken  advantage  thereof  in  some  cases, 
he  can  make  no  further  use  of  it. 

1  Inst.  393  a. 

If  in  a  praecipe  the  tenant  vouches,  and  at  the  sequatur  sub  suo  periculo 
the  tenant  and  the  vouchee  make  default,  whereupon  the  demandant  has 
judgment  against  the  tenant :  and  afterwards  the  demandant  brings  a 
scire  facias  against  the  tenant  to  have  execution ;  in  this  case  the  tenant 
may  have  a  ivarrantia  chartce. 

1  Inst.  393  a. 

And  if  in  that  case  a  stranger  had  brought  a  praecipe  against  the  tenant, 
the  warranty  lost  not  its  force  ;  but,  if  the  tenant  had  judgment  to  recover 
in  value  against  the  vouchee,  he  should  not  vouch  again  by  reason  of  that 
warranty,  because  he  had  taken  advantage  of  the  warranty. 

1  lust.  393  a. 

(P)  How  Warranties  shall  be  expounded. 

It  is  a  principle  of  law  that  all  warranties  in  general  are  to  be  favour- 
ably construed,  because  they  are  part  of  men's  assurances. 

It  is  to  be  observed  likewise,  that  in  some  cases  warranties  in  law  are 
not  taken  away  by  express  warranties ;  as,  if  a  man  leaseth  for  life,  and 
farther  bindeth  himself  and  his  heirs  to  warranty,  here  the  express  warranty 


OF  WARRANTY.  417 

(P)  How  Warranties  shall  be  expounded. 

doth  not  take  away  the  warranty  in  law ;  for  if  he  in  reversion  granteth 
:  over  his  reversion,  and  the  lessee  attorneth,  and  afterwards  is  impleaded, 
'  he  may  vouch  the  grantee  by  the  warranty  in  law,  or  he  may  vouch  the 
lessor  by  the  express  warranty. 
4  Rep.  81,  Noke's  case. 

So  likewise,  if  a  man  make  a  feoffment  in  fee  by  the  word  dedi,  with 
an  express  warranty  in  the  deed,  he  may  use  the  one  or  the  other  at  his 
election ;   and  the  warranty  wrought  by  this  word  dedi  is  a  special  war- 
ranty, and  extendeth  to  the  heirs  of  the  feoffee  during  the  life  of  the 
donor  only.     But  upon  an  exchange,  the  warranty  extendeth  reciprocally 
to  the  heirs,  and  against  the  heirs  of  both  parties ;  though  the  assignee 
shall  not  vouch  by  force  of  such  warranties. 
4  Rep.  81,  Noke's  case ;  1  Inst.  384  a. 
A  partition  implies  a  warranty  in  law. 
4  Rep.  81,  Noke's  case ;  1  Inst.  384  a. 

So,  if  a  man  make  a  gift  in  tail  or  a  lease  for  life  of  land  by  deed  or 
without  deed,  reserving  a  rent,  or  of  a  rent-service  by  deed,  this  is  a  war- 
ranty in  law ;  and  the  donee  or  lessee  being  impleaded  shall  vouch  and 
recover  in  value ;  and  this  warranty  in  law  extendeth  not  only  against 
the  donor  or  lessor  and  his  heirs,  but  also  against  his  assignees  of  the 
reversion ;  and  so  likewise  the  assignee  of  lessee  for  life  shall  take  the 
benefit  of  this  warranty  in  law. 
1  Inst.  384  b. 

When  dower  is  assigned,  there  is  a  warranty  in  law  included,  that  the 
tenant  in  dower,  being  impleaded,  shall  vouch  and  recover  in  value  a 
third  part  of  the  two  parts  whereof  she  is  dowable. 

1  Inst.  384  b. 

If  a  man  of  a  full  age  and  an  infant  make  a  feoffment  in  fee  with  war- 
ranty, this  warranty  is  not  void  in  part  and  good  in  part ;  but  it  is  good  for 
the  whole  against  the  man  of  full  age,  and  void  against  the  infant ;  for 
although  the  feoffment  of  an  infant  passing  by  livery  of  seisin  be  voidable, 
yet  his  warranty  which  taketh  effect  only  by  deed,  is  merely  void. 

1  Inst,  3b7  b. 

If  a  man  make  a  feoffment  in  fee,  and  bind  his  heirs  to  warranty,  this 
is  void,  because  the  ancestor  himself  was  not  bound:  also,  if  a  man  bind 
himself  to  warranty,  and  not  his  heirs,  the  heirs  are  not  bound. 

1  Inst.  38G  a. 

But  a  warranty  in  law  may  bind  the  heir,  although  it  never  bound  the 
ancestor. 

1  Inst,  386  a. 

If  a  man  for  him  and  his  heirs  warrant  lands  unto  another  and  his  heirs, 
this  is  a  general  warranty,  because  it  is  not  restrained  to  any  person  certain. 

1  Rep.  1,  Lord  Buckhurst's  case. 

A  warranty  regularly  doth  extend  to  all  things  issuing  out  of  the  land ; 
that  is  to  say,  to  warrant  the  land  in  such  plight  and  manner,  as  it  was 
at  in  the  hand  of  the  feoffor,  at  the  time  of  the  feoffment  with  warranty, 
and  the  feoffee  shall  vouch,  as  of  lands  discharged  of  the  rent,  &c,  at 
the  time  of  the  feoffment  made. 

1  Inst.  388  b. 

If  a  woman  that  hath  a  rent-charge  in  fee,  intermarrieth  with  the  tenant 

Vol.  X.— 53 


418  OF  WARRANTY. 

(Q)  Of  Warranties  in  the  Sale  of  personal  Chattels. 

of  the  land,  and  a  stranger  releases  to  the  tenant  of  the  land,  with  war- 
ranty, he  shall  not  take  advantage  of  this  warranty,  either  by  voucher 
or  warrantia  eliartse  ;  for  the  wife,  if  the  husband  die,  or  the  heir  of  the 
wife  living  the  husband,  cannot  have  an  action  for  the  rent  upon  a  title 
before  the  warranty  made ;  for  if  the  heir  of  the  wife  bring  an  assize  of 
mort  cV ancestor,  this  action  is  grounded  after  the  warranty,  whereunto, 
as  has  been  said,  the  warranty  shall  not  extend. 
1  Inst.  388  b,  and  389  a. 

So  it  is,  if  the  grantee  of  the  rent  grant  it  to  the  tenant  of  the  land 
upon  condition,  which  maketh  a  feoffment  of  the  land  with  warranty, 
this  warranty  cannot  extend  to  the  rent ;  albeit  the  feoffment  was  made 
of  the  land  discharged  of  the  rent,  for  if  the  condition  be  broken,  and 
the  grantor  be  entitled  to  an  action,  this  must  of  necessity  be  grounded 
after  the  warranty  made. 

1  Inst.  389  a. 

But  in  the  case  aforesaid,  when  the  woman,  grantee  of  the  rent,  marrieth 
with  the  tenant,  and  the  tenant  maketh  a  feoffment  in  fee  with  warranty, 
and  dieth ;  in  a  cui  in  vita  brought  by  the  wife,  (as  in  law  she  may,)  the 
feoffee  shall  vouch  as  of  lands  discharged  at  .the  time  of  the  warranty 
made,  for  that  heir  title  is  paramount.  So,  if  a  tenant  in  tail  of  a  rent- 
charge  purchase  the  land,  and  make  a  feoffment  with  warranty,  if  the 
issue  bring  a  formedon  of  the  rent,  the  tenant  shall  vouch. 

1  Inst.  389  a. 

3(Q)  Of  Warranties  in  the  Sale  of  personal  Chattels. 
1.  Express  Warranties. 
If  one  sell  a  horse,  warranting  him  to  be  sound,  he  is  answerable  on 
his  warranty  whether  he  knew  the  horse  to  be  sound  or  otherwise. 
Kimmel  v.  Lichty,  3  Yeates,  2G2. 

To  constitute  an  express  warranty,  it  is  not  requisite  that  the  word 
warrant  should  be  used. 
Jackson  v.  Wetherill,  7  S.  &  R.  482. 

Warranty  that  a  negro  was  born  a  slave,  is  not  broken  by  a  claim  made 
by  the  negro  to  his  freedom,  originating  under  the  laws  of  another  state 
against  the  importation  of  slaves. 

Davis  v.  Sandford,  Litt.  Sel.  Cas.  206. 

A  warranty  of  the  quantity  of  a  cargo,  is  not  an  implied  warranty  that 

the  whole  is  sound. 
Jones  v.  Murray,  3  Monr.  84. 

Where  the  seller  affirms  at  the  time  of  the  sale  that  a  horse  is  not  lame, 
and  says  he  would  not  be  afraid  to  warrant  him,  this  is  a  warranty. 

Cook  v.  Moseley,  13  Wend.  277.  See  Whitney  v.  Sutton,  11  Wend.  441 ;  lloberts 
v.  Morgan,  2  Cowen,  438  ;  The  Oneida  Manufacturing  Society  v.  Lawrence,  4  Cowen, 
440. 

To  constitute  an  express  warranty,  the  affirmation,  at  the  time,  must 
be  intended  as  a  warranty ;  otherwise  it  is  a  mere  opinion. 

Sweet  v.  Colgate,  20  Johns.  19G. 

A  sale  by  sample  is  per  se  a  warranty  that  the  bulk  shall  correspond 
with  the  sample. 

Boorman  v.  Jenkins,  12  Wend.  5G6  ;  Beebee  v.  Robert,  12  Wend.  413  ;  Gallagher 
v.  Waring,  9  Wend.  20 ;  Andrews  v.  Kneeland,  G  Cowen,  354. 


. 


OF    WARRANTY.  419 

(Q)  Of  Warranties  in  the  Sale  of  personal  Chattels. 

In  the  sale  of  personal  property,  when  the  property  is  defective,  the 
seller  will  be  responsible,  first,  when  there  is  a  special  warranty,  though 
the  seller  be  ignorant  of  the  defect ;  and  secondly,  when  there  was  no 
special  warranty,  but  the  seller  knew  of  the  defect,  and  concealed  it  at 
the  time  of  the  sale. 

Glasscock  v.  Wells,  Cooke's  R.  2G6.  See  Westmoreland  v.  Dixon,  4  Hayw.  223  ;  2 
Ycrg.  304. 

Where  a  bill  of  sale  of  a  negro  contained  the  following  words  :  "  The 
6aid  II  and  S  do  for  ever  warrant  and  defend  the  title  of  the  said  negro, 
from  all  persons  whatever  claiming  or  to  claim  her,  and  do  likewise  state 
that  we  have  sold  her  to  D  as  a  sound  and  healthy  negro  ;"  this  is  a  suffi- 
cient warranty  of  soundness. 
Ditto  v.  Helm,  2  J.  J.  Marsh.  129. 

Where  a  bill  of  sale  of  a  slave  contained  these  words :  "  About  eleven 
years  of  age,  sound  and  healthy,  and  do  by  these  presents  further  covenant 
and  agree  to  warrant  the  right,"  &c.  Held,  to  amount  to  a  warranty  of 
soundness. 

Gilchrist  v.  Marrow,  2  Car.  L.  Rep.  607.     See  Ayres  v.  Parks,  3  Hawks.  59. 

Where  the  vendee  proved,  the  vendor  told  him  at  the  time  of  selling 
him  a  mare,  that  he  was  sure  she  Avas  perfectly  safe,  kind,  and  gentle  in 
harness :  Held,  that  this  did  not  amount  to  an  express  warranty  so  as  to 
render  him  liable  in  assumpsit,  although,  if  made  falsely,  it  would  render 
the  seller  liable  to  an  action  of  deceit. 

Jackson  v.  Wetherill,  7  S.  &  R.  482. 

A  warranty  does  not  extend  to  things  which,  from  the  senses,  may  be 
discerned  to  be  otherwise. 
Schuyler  v.  Russ,  2  Caines,  202. 

2.   Of  implied  Warranties. 

In  sales  of  personal  goods  there  is  an  implied  warranty  that  the  article 
sold  corresponds  with  the  commodity  represented,  unless  there  are  circum- 
stances to  show  the  risk  of  determining  not  only  the  quality  of  the  goods, 
but  the  kind  he  purchased ;  therefore,  if  the  defendant  sell,  and  the  plain- 
tiff purchase  an  article  as  "blue  paint,"  and  it  is  so  described  in  the  bill 
of  parcels,  this  amounts  to  a  warranty  that  the  article  to  be  delivered  shall 
be  blue  paint,  and  not  a  different  article. 

Borrekins  v.  Bevan,  3  Rawle,  23.  See  Willing  v.  Consequa,  1  Pet.  C.  C.  317 ; 
Jackson  v.  Wetherill,  7  S.  &  R.  482;  Ease  v.  John,  10  Watts,  109.  But  see  Holden 
V.  Dakin,  4  Johns.  421. 

But  though  the  seller  is  answerable  to  the  buyer,  that  the  article  sold 
shall  be  in  specie,  the  thing  for  which  it  was  sold,  yet  if  there  be  only  a 
partial  adulteration,  which  does  not  destroy  the  distinctive  character  of 
the  thing,  the  buyer  is  bound  by  the  bargain. 

Jennings  v.  Gratz,  3  Rawle,  108.     But  see  Defreeze  v.  Trumper,  1  Johns.  274. 

The  doctrine  of  implied  warranty  that  the  article  sold  is  of  ordinary 
quality  of  articles  of  its  kind,  applies  only  to  articles  susceptible  of  a 
standard  quality,  or  which  are  sold  by  samples. 

Pollard  v.  Lyman,  1  Day's  Cas.  15G. 

An  advertisement  of  property  for  sale,  which  gives  it  a  higher  character 
than  it  deserves,  does  not  amount  to  a  warranty  as  to  the  quality,  if  the 
purchaser  relies  upon  his  own  examination. 

Calhoun  v.  Vecchio,  3  Wash.  C.  C.  105 ;  M-Farland  v.  Newman,  9  Watts,  55. 


420  OF  WASTE. 

Of  Waste. 

When  one  having  possession  of  a  personal  chattel,  sells  it,  his  bare 
affirmation  amounts  to  a  Avarranty  of  the  title ;  but  when  he  is  out  of 
possession,  it  is  otherwise. 

Ritchie  v.  Summers,  3  Yeates,  531,  534;  Boyd  v.  Bopst,  2  Dall.  91 ;  Hook  v.  Ro- 
binson, Addis.  271. 

Where  the  seller  of  a  horse  knew  of  a  material  defect,  which  in  equity 
and  good  conscience  he  ought  to  have  disclosed,  and  he  did  not  disclose 
it,  if  this  be  unknown  to  the  buyer,  or  it  could  not  be  presumed  to  be 
known  to  a  buyer  of  common  prudence,  it  will  vitiate  the  contract. 
Dixon  v.  M'Clutchey,  Addis.  322  ;  3  Yeates,  2G2  ;  Addis.  14G. 

Where  the  seller  of  a  personal  chattel  makes  a  wilful  misrepresentation, 
or  conceals  a  material  circumstance,  this  is  a  fraud ;  and  the  buyer  may 
recover  damages  in  proportion  to  his  confidence  in  the  seller. 

Work  v.  Grier,  Addis.  375. 

A  agreed  to  procure  and  deliver  to  B  the  note  of  W  endorsed  by  two 
other  persons,  and  afterwards  he  wrote  to  B  a  letter  in  which  he  said,  "I 
enclose  you  the  note  of  W's,  as  proposed,  which  you  will  please  to  pass 
to  my  credit."  Held,  that  this  was  an  implied  warranty  that  the  endorse- 
ments on  the  note  enclosed  were  genuine. 

Coolidge  v.  Brigham,  1  Met.  547. 

The  word  grant,  in  a  lease  for  years,  is  a  warranty  of  the  lessor's  title. 
Grannis  v.  Clark,  8  Co-wen,  3G. 

A  representation  that  the  vessel  insured  is  American,  is  equivalent  to 
a  warranty,  though  no  warranty  is  contained  in  the  policy. 

Yaudenheuvel  v.  Church,  2  Johns.  Cas.  173,  n. ;  Goix  v.  Low,  1  Johns.  Cas.  341 ; 
Murray  v.  The  United  States  Insurance  Company,  2  Johns.  Cas.  168 ;  2  Johns.  Cas. 
173,  n.  ;  8  Johns.  307. £f 


OF   WASTE. 


Waste  is  the  committing  of  any  spoil  or  destruction  in  houses,  lands, 
&c,  by  tenants,  to  the  damage  of  the  heir,  or  of  him  in  reversion  or  re- 
mainder :  whereupon  the  writ  or  action  of  waste  is  brought  for  the  reco- 
very of  the  thing  wasted,  and  damages  for  the  waste  done. 

In  order  to  state  the  law  relative  to  this  head,  we  will  consider  it  under 
the  following  divisions : 

(A)  In  what  Subjects  Waste  may  be  committed. 

(B)  Of  the  several  Kinds  of  Waste. 

(C)  What  Acts  shall  bo  deemed  Waste:  And  herein, 

1.  What  shall  be  deemed  Waste  in  Lands. 

2.  What  shall  be  deemed  Waste  in  Trees  and  Woods. 

3.  What  shall  be  deemed  Waste  in  digging  for  Gravel,  Mines,  &c. 

4.  What  shall  be  deemed  Waste  in  Gardens,  Orchards,  Fish-Ponds,  Dove-Houses, 

Parks,  dec. 

5.  What  shall  be  deemed  Waste  with  respect  to  Houses,  drc.     And  herein, 
Of  what  Things  annexed  to  the  Freehold,  Waste  may  be  committed. 


OF  WASTE.  421 

(A)  In  what  Subjects  in  general  Waste  may  be  committed. 

(D)  What  shall  be  deemed  Waste  with  respect  to  ecclesiastical  Persons. 

(E)  What  Waste  shall  be  deemed  excusable. 

(F)  What  Waste  shall  be  justifiable,  by  Reason  of  the  Interest  of  the  Party. 

(G)  Who  may  bring  an  Action  of  Waste. 

(II)  Against  whom  the  Action  of  Waste  may  be  brought :  Herein, 

1.  Against  whom  it  may  be  brought  for  Waste  done  by  a  Stranger. 

2.  How  far  it  lies  against  Executors,  dr. 

(I)  At  what  Time  an  Action  of  Waste  shall  be  brought. 

(K)  Of  the  Process  and  Proceedings  in  Actions  of  Waste :  And  herein, 

1.  In  ichat  Cases  the  Action  shall  be  brought  in  the  Tenet. 

2.  In  what  Cases  it  shall  be  brought  in  the  Tenuit. 
(L)  Of  the  Pleadings  in  Actions  of  Waste. 

(M)  Of  the  Judgment  in  Actions  of  Waste,  and  what  shall  be  recovered  thereby. 

(N)  In  what  Cases  in  general  Waste  may  be  restrained  by  Injunction  in  Equity. 
And  herein, 
How  far  it  may  be  restrained  in  Equity,  notwithstanding  the  Words  without  Im- 
peachment of  Waste  be  contained  in  the  Lease,  dec. 

(0)  What  Relief  may  be  given  in  Equity  in  Cases  of  Waste. 


(A)  In  what  Subjects  in  general  Waste  may  be  committed. 

The  statute  52  H.  3,  c.  23,  §  2,  enacts,  that  farmers,(a)  during  their 
terms,  shall  not  make  tvaste,(b)  sale,(e)  nor  exile  of  house,  woods,  and  men. 

This  act  provideth  remedy  for  waste  done  by  lessee  for  life,  or  lessee  for  years,  and 
it  is  the  first  statute  that  gave  remedy  in  those  cases :  for  the  rule  of  the  register  is, 
that  there  are  five  manner  of  writs  for  waste,  viz.,  two  at  the  common  law,  as  for  waste 
done  by  tenant  in  dower,  or  by  the  guardian  ;  and  three  by  statute  or  special  law,  as 
against  tenant  for  life,  tenant  for  years,  and  tenant  by  the  curtesy.  2  Inst.  145,  [299. 
But  this  opinion  of  Lord  Coke,  that  there  was  no  remedy  at  common  law  for  waste, 
except  against  tenant  by  the  curtesy  in  dower,  and  a  guardian,  it  should  seem,  is  not 

well  founded.     Vide  Bract,  lib.  4,  c.  18  ;  2  Reeves's  Hist.  Law,  73,  74, 148,_note.] 

This  statute  is  a  penal  law,  and  yet  because  it  is  a  remedial  law  it  has  been  interpreted 

by  equity.     Arg.  10  Mod.  281,  in  case  of  Hammond  v.  Webb. (a)  Here  farmers  do 

comprehend  all  such  as  hold  by  lease  for  life  or  lives,  or  for  years,  by  deed  or  without 

deed.    2  Inst.  145. It  has  been  resolved  likewise  that  it  should  extend  to  strangers. 

Arg.  10  Mod.  281,  in  case  of  Hammond  v.  Webb. Although  the  register  says  sciend. 

that  per  statutum  de  Marlebridge,  cap.  23,  data  fuit  qucedam  prohibitio  vasti  versus 
tenentem  annorum,  which  is  true;  yet  the  statute  extends  to  farmers  for  life  also,  but 
this  act  extended  not  to  tenant  by  the  curtesy,  for  he  is  not  a  farmer ;  but  if  a  lease  be 

made  for  life  or  years,  he  is  a  farmer,  though  no  rent  be  reserved.     2  Inst.  145. - 

(6)  By  these  word's  they  are  prohibited  to  suffer  waste,  for  it  has  been  resolved  that  this 
act  extends  to  waste  omittendo,  though  the  word  is  faciant,  which  literally  imports 
active  waste.  Arg.  10  Mod.  281,  in  case  of  Hammond  v.  Webb,  [(c)  Note,  the  word 
sale  is  not  in  the  original  act.  Bracton,  speaking  of  the  terms  waste,  destruction,  and 
exile,  says,  that  the  two  first  signified  the  same  thing  ;  but  exilium  meant  something 
of  a  more  enormous  nature  ;  as  spoiling  or  selling  houses ;  prostrating  and  extirpat- 
ing trees  in  an  orchard  or  avenue,  or  about  any  house;  all  these  were  considered,  says 
he,  ad  maximum  deformitatem  a  curicc  et  capitalis  messuagii,  and  as  they  either  drove 
the  inhabitants  away,  or  had  a  tendency  so  to  do,  they  were  called  exilium.  Bract, 
lib.  4,  c.  18,  \  13 ;  1  Reeves's  Hist.  Law,  386.] 

Nor  of  any  thing{d)  belonging  to  the  tenements  that  they  have  to  farm. 

(d)  Houses,  woods,  and  men  were  before  particularly  named,  and  these  words  do 

comprehend  lands  and  meadows  belonging  to  the  farm.     2  Inst.  14G. Also  these 

general  words  have  a  further  signification  ;  and,  therefore,  if  there  had  been  a  farmer 
for  life  or  years  of  a  manor,  and  a  tenancy  had  escheated,  this  tenancv  so  escheated  did 

2N 


422  OF  WASTE. 

(C)  "What  Acts  shall  he  deemed  Waste. 

belong  to  the  tenements  that  he  held  in  farm,  and  therefore  this  extended  to  it ;  and 
the  lessor  shall  have  a  writ  generally,  and  suppose  a  lease  made  of  the  lands  escheated 
by  the  lessor,  and  maintain  it  by  the  special  matter,     2  Inst.  146. 

Unless  they  have  special  license(a)  by  writing  of  covenant,  mentioning 
that  they  may  do  it. 

(a)  This  grant  ought  to  be  by  deed,  for  all  waste  tends  to  the  disinheritance  of  the 
lessor,  and  therefore  no  man  can  claim  to  be  dispunishable  of  waste  without  deed. 

2  Inst.  146. Likewise  this  special  grant  is  intended  to  be  absque  impeditione  vasti,  - 

without  impeachment  of  waste.     2  Inst.  146. 

Wliich  thing  if  they  do,  and  thereof  be  convict,  they  shall  yield  full 
damage,  and  shall  be  punished  by  amerciament  grievously. 

And  this  must  be  understood  in  such  a  prohibition  of  waste  upon  this  statute  as  lay 
against  a  tenant  in  dower  at  the  common  law,  and  single  damages  were  given  by  this 
statute  against  lessee  for  life,  and  lessee  for  years.     2  Inst.  146. 

But  waste  may  be  committed  not  only  in  houses  and  lands,  but  in 
gardens,  orchards,  timber-trees,  dove-houses,  warrens,  parks,  fish-ponds, 
and  other  subjects  of  property,  as  will  be  shown. 

1  Inst.  53  a. 

(B)  Of  the  several  Kinds  of  Waste. 

There  are  two  kinds  of  waste,  viz.,  voluntary  or  actual,  and  negligent 
or  permissive.  Voluntary  waste  may  be  done  by  pulling  down  or  pro- 
strating houses,  or  cutting  down  timber-trees :  Negligent  waste  may  be 
by  suffering  houses  to  be  uncovered,  whereby  the  spars  or  rafters, 
planches  or  other  timber  of  the  house  are  rotten. 

1  Inst.  53  a. 

A  leased  a  house  which  was  ruinous  at  the  time  of  the  demise:  the 

lessee  obliged  himself  not  to  do  or  suffer  any  voluntary  waste,  &c. :  the 

house  fell,  and  A  brought  debt :  it  was  adjudged,  that  it  lies ;  for  it  is 

waste,  though  the  lessee  may  excuse  himself  upon  the  special  matter. 

Dy.  38,  pi.  35  ;  Ow.  92,  Glover  v.  Pipe,  and  a  difference  was  taken  between  an  ac- 
tion of  waste,  and  debt  on  an  obligation. 

So,  where  A  leased  a  house  and  land  for  years  by  indenture,  in  which 
was  a  clause  that  if  the  lessee  happens  to  do  any  ivaste,  the  lessor  may 
re-enter.  The  lessee  suffered  the  house  to  fall  for  want  of  covering  and 
repairing.  Though  the  words  were  (to  do  any  waste),  yet  I)yer  and  Walsh 
inclined  that  lessor  might  re-enter,  because  such  waste  is  punishable  by 
the  statute  of  Gloucester,  and  the  words  (any  waste)  is  general  and  indif- 
ferent to  either  of  the  two  kinds  of  ivaste,  viz.,  voluntary  or  negligent,  &c. 

Dy.  281,  pi.  21.  Of  this  opinion  likewise  is  Lord  Coke  in  his  comment  on  the  sta- 
tute of  Marlebridge,  where  he  says,  That  to  do  or  make  waste,  in  legal  understanding, 
includes  negligent  as  well  as  voluntary  waste.  2  lust.  145.  ||It  has  been  held  an  ac- 
tion on  the  case  does  not  lie  for  mere  permissive  waste  against  a  tenant  at  will,  who 
has  not  covenanted  to  repair.  Gibson  v.  Wells,  1  New  K.  2'JO  ;  nor  against  tenant  for 
years.  Heme  v.  Benbow,  4  Taunt.  704;  Jones  v.  Hill,  7  Taunt.  392;  sed  vide 
2  Saund.  252,  n.  7,  cont.,  and  see  3  Co.  li.  25,  note  (A),  (cd.  Fraser.)|| 

(C)  What  Acts  shall  be  deemed  Waste. 

It  has  been  laid  down  as  a  general  principle,  that  the  law  will  not  allow 
that  to  be  waste,  which  is  not  any  way  prejudicial  to  the  inheritance. 
Het.  35,  Barret  v.  Barret. 

Nevertheless,  it  has  been  held,  that  a  lessee  or  tenant  cannot  change  the 


OF  WASTE.  423 

(C)  What  Acts  shall  be  deemed  Waste. 

nature  of  the  thing  demised ;  though  in  some  cases  the  alteration  may  be 
for  the  greater  profit  of  the  lessor.     Thus, — 

If  a  lessee  converts  a  corn-mill  into  a  fulling-mill,  it  is  waste,  although 
the  conversion  be  for  the  lessor's  advantage. 

Cro.  Ja.  182,  Civit.  London  v.  Greyme. 

Also,  converting  a  brewhouse  of  1201.  per  annum  into  other  houses 
let  for  2001.  a  year,  is  waste,  because  of  the  alteration  of  the  nature  of 
the  thing,  and  of  the  evidence. 

1  Lev.  309,  Cole  v.  Green. 

||  But  where  the  jury,  in  an  action  for  waste,  against  a  tenant  for  years, 

in  converting  three  closes  of  meadow  into  garden  ground,  gave  only  one 

farthing  damages  for  each  close,  the  court  gave  the  defendant  leave  to 

enter  up  judgment  for  himself,  on  the  ground  that  the  reversion  could 

not  be  considered  as  injured,  and  de  minimis  non  curat  lex. 

The  Governors,  &c,  of  Harrow  School  v.  Alderton,  2  Bos.  &  Pul.  8G ;  and  see  1 
Bing.  382;  1  Jac.  &  Walk.  651.|| 

We  will  now  consider  what  shall  be  deemed  ivaste  with  respect  to  par- 
ticular subjects  of  property.     And, 

1.    Wliat  Acts  shall  be  deemed  Waste  in  Lands. 

If  the  tenant  converts  arable  into  wood,  or  e  converso,  it  is  waste  ;  for  it 
not  only  changes  the  course  of  husbandry,  but  also  the  proof  of  evidence. 
Hobart's  Rep.  Case,  296,  p.  234. 

But  if  a  lessee  suffers  arable  land  to  lie  fresh,  and  not  manured,  so  that 
the  land  grows  full  of  thorns,  &c,  this  is  not  waste,  but  ill  husbandry. 

2  Roll.  Abr.  814. 

Likewise,  the  conversion  of  meadow  into  arable  is  waste,  for  it  not  only 
changes  the  course  of  husbandry,  but  the  proof  of  his  evidence. 

1  Inst.  53  b. 

But  if  meadow  be  sometimes  arable,  and  sometimes  meadow,  and 
sometimes  pasture,  there  the  ploughing  of  it  is  not  waste. 

2  Roll.  Abr.  815.  Some  say,  that  ploughing  must  be  prohibited  by  covenant  to  pay 
so  much  an  acre,  for  that  an  absolute  restraint  from  ploughing  is  void. 

Neither  is  the  division  of  a  great  meadow  into  many  parcels,  by  the 
making  of  ditches,  waste ;  for  the  meadows  may  be  better  for  it,  and  it 
is  for  the  profit  and  ease  of  the  occupiers. 

2  Ley,  174,  pi.  210. 

Likewise,  converting  a  meadow  into  a  hop  garden,  is  not  waste;  for  it 
is  employed  to  a  greater  profit,  and  it  may  be  meadow  again.  Per 
Windham  and  Rhodes,  J. ;  but  Periam,  J.,  said,  though  it  be  a  greater 
profit,  yet  it  is  also  with  greater  labour  and  charges. 

2  Ley,  174,  pi.  210. 

But  converting  a  meadow  into  an  orchard  is  waste,  though  it  be  to  the 
greater  profit  of  the  occupier.     Per  Periam. 
2  Ley,  174,  pi.  210.     ||See  2  Bos.  &  Pul.  86. || 

If  a  lessee  plough  the  land  stored  with  conies,  this  is  not  waste ;  unless 
it  be  a  warren  by  charter  or  prescription. 
2  Roll.  Abr.  815. 

So,  if  a  lessee  of  land  destroys  the  coney-boroughs  in  the  land,  it  not 


424  OF  WASTE. 

(C)  What  Acts  shall  be  deemed  Waste. 

being  a  free  warren  by  charter  or  prescription,  it  seems  it  is  not  waste ; 
for  a  man  can  have  no  property  in  them,  but  only  a  possession. 
Ley,  174,  pi.  210 ;  Ow.  06,  Moyle  v.  Moyle. 

It  is  waste  to  suffer  a  wall  of  the  sea  to  be  in  decay,  so  as  by  the  flowing 
and  reflowing  of  the  sea  the  meadow  or  marsh  is  surrounded,  whereby  the 
same  becomes  unprofitable.  But  if  it  be  surrounded  suddenly  by  the  rage 
and  violence  of  the  sea,  occasioned  by  wind,  tempest,  or  the  like,  without 
any  default  in  the  tenant,  this  is  not  waste.  Yet,  if  the  tenant  repair  not 
the  banks  or  walls  against  rivers  or  other  waters,  whereby  the  meadows  or 
marshes  be  surrounded  and  become  rushy  and  unprofitable,  this  is  waste. 

1  Inst.  53  b. 

So,  a  fortiori,  if  arable  land  be  surrounded  by  such  default ;  for  the 
rrounding  wasl 

2  Roll.  Abr.  816. 


surrounding  washes  the  marl  and  other  manurance  from  the  land. 


2.    What  Acts  shall  be  deemed  Waste  in  Trees  and  Woods. 
Trees  are  parcel  of  the  inheritance,  and  therefore  if  lessee  assigneth 
his  term,  and  excepts  the  timber  trees,  it  is  void ;  for  he  cannot  except 
that  which  doth  not  belong  to  him  by  law. 
5  Rep.  12,  Saunders's  case. 

The  lessor,  after  he  has  made  a  lease  for  life  or  years,  may  by  deed 
grant  the  trees,  or  reasonable  estovers  out  of  them,  to  another  and  his 
heirs  ;  and  the  same  shall  take  effect  after  the  death  of  the  lessee.  But 
such  a  gift  to  a  stranger  is  void  during  the  estate  for  life,  because  of  the 
particular  prejudice  which  might  be  done  to  the  lessee. 

11  Rep.  48,  Liford's  case. 

The  lessee  hath  but  a  particular  interest  in  the  trees,  but  the  general  in- 
terest of  the  trees  doth  remain  in  the  lessor :  for  the  lessee  shall  have  the 
waste  and  fruit  of  the  trees,  and  the  shadow  for  his  cattle,  &c,  but  the  in- 
terest of  the  body  of  the  tree  is  in  the  lessor,  as  parcel  of  his  inheritance. 

11  Rep.  48,  Liford's  case. 

Therefore,  if  trees  are  overthrown,  by  the  lessee  or  any  other,  or  by 
wind  or  tempest,  or  by  any  other  means  disjointed  from  the  inheritance, 
the  lessor  shall  have  them  in  respect  of  his  general  ownership. 

11  Rep.  81,  Bowles's  case. 

1  Waste  can  be  committed  only  of  the  thing  demised.  If,  therefore, 
the  trees  are  excepted  out  of  the  demise,  no  waste  can  be  committed  by 
cutting  them  down. 

8  East,  190,  Goodright  v.  Vivian.} 

With  respect  to  timber  trees,  such  as  oak,  ash,  and  elm,  (which  are 
timber  trees  in  all  places,)  waste  may  be  committed  in  them,  either  by 
cutting  them  down,  or  topping  them,  or  doing  any  act  whereby  the  timber 
may  decay.  Also,  in  countries  where  timber  is  scant,  and  beeches  or 
the  like  are  converted  to  building  for  the  habitation  of  man,  they  are 
also  accounted  timber. 

1  Inst.  53  a,  54  b. 

Thus,  waste  may  by  committed  in  the  cutting  of  beeches  in  Buckingham- 
shire, because  there,  by  the  custom  of  the  country,  they  are  the  best  timber. 

2  Roll.  Abr.  814;  || Aubrey  v.  Fisher,  10  East,  446  ;  Wright  v.  Powle,  Gwill.  Tyth. 
Ca.  357.  || 


OF    WASTE.  425 

(C)  What  Acts  shall  be  deemed  Waste. 

So,  waste  may  be  committed  in  the  cutting  of  birches  in  Berkshire, 
because  they  are  the  principal  trees  there  for  the  most  part. 
2  Roll.  Abr.  814. 

If  the  tenant  cut  down  timber  trees,  or  such  as  are  accounted  timber, 
as  is  aforesaid,  this  is  waste ;  and  if  he  suffer  the  young  germins  to  be 
destroyed,  this  is  destruction.  So  it  is,  if  the  tenant  cut  down  under- 
wood, (as  he  may  by  law,)  yet,  if  he  suffer  the  young  germins  to  be  de- 
stroyed, or,  if  he  stub  up  the  same,  this  is  destruction. 

1  Inst.  53  a. 

If  a  lessee  or  his  servant  suffer  a  wood  to  be  open,  by  which  beasts  en- 
ter and  eat  the  germins,  though  they  grow  again,  yet  it  is  waste ;  for  after 
such  eating  they  never  will  be  great  trees,  but  shrubs. 

2  Roll.  Abr.  815. 

If  a  termor  cuts  down  underwood  of  hazel,  willows,  maple,  or  oak, 
which  is  seasonable,  it  is  not  waste. 

2  Roll.  Abr.  817.  If  usually  cut  and  sold  every  ten  years,  it  is  no  waste ;  but  if  he 
dig  them  up  by  the  roots,  or  suffer  the  germins  to  be  bitten  with  cattle  after  they  are 
felled,  so  as  they  will  not  grow  again,  the  same  is  a  destruction  of  the  inheritance,  and 
waste  lies  for  it.  And  mowing  the  stocks  with  a  wood  scythe  is  a  malicious  waste  ; 
and  continual  mowing  and  biting  is  destruction.  Godb.  210,  pi.  298,  Sir  John  Gage 
v.  Smith. 

If  ashes  are  seasonable  wood  to  cut  from  ten  years  to  ten  years,  it  is 
not  waste  to  cut  them  down  for  house-bote. 
2  Roll.  Abr.  817. 

But,  if  the  ashes  are  gross  of  the  age  of  nine  years,  and  able  for  great 
timber,  it  is  waste  to  cut  them  down. 
2  Roll.  Abr.  817. 

If  oaks  are  seasonable,  and  have  been  used  to  be  cut  always  at  the  age 
of  twenty  years,  it  is  not  waste  to  cut  them  down  at  such  age,  or  under ; 
for  in  some  countries,  where  there  is  great  plenty,  oaks  of  such  age  are 
but  seasonable  wood. 

2  Roll.  Abr.  817. 

But  after  the  age  of  twenty  years,  oaks  cannot  be  said  to  be  wood  sea- 
sonable, and  therefore  it  shall  be  waste  to  cut  them  down. 
2  Roll.  Abr.  817. 

Cutting  down  willows,  beech,  birch,  asp,  maple,  or  the  like,  standing 
in  the  defence  and  safeguard  of  the  house,  is  destruction.  If  there  be  a 
quickset  fence  of  white  thorn,  if  the  tenant  stub  it  up,  or  suffer  it  to  be 
destroyed,  this  is  also  destruction.  And  for  all  these  and  the  like  de- 
structions, an  action  of  waste  lieth. 
1  Inst.  53  a. 

The  cutting  of  horn-beams,  hazels,  willows,  sallows,  though  of  forty 
years'  growth,  is  no  waste,  because  these  trees  would  never  be  timber. 
Per  Meade,  J. 
Godb.  4,  pi.  G. 

|3  Selling  or  otherwise  using  timber  unnecessarily  is  waste. 
Brashear  v.  Macey,  3  J.  J.  Marsh.  93. 

In  Massachusetts,  to  cut  oak  trees  for  firewood,  where  such  is  the  com- 
mon practice,  is  not  waste. 
Padelford  v.  Padelford,  7  Pick.  152. 

But  it  is  waste  to  cut  timber  trees  and  exchange  them  for  firewood. 
7  Pick.  152.     See  Elliott  v.  Smith,  2  N.  II.  Rep.  430. 

Vol.  X.— 54  2  n  2 


426  OF    WASTE. 

(C)  What  Acts  shall  he  deemed  Waste. 

Tenant  for  life  may  cut  down  timber  trees  for  the  purpose  of  making 
necessary  repairs  to  the  estate,  and  he  may  sell  them  and  purchase  boards 
•with  the  proceeds  for  such  repairs,  and  this  is  no  waste ;  provided  this  be 
the  most  economical  way  of  making  such  repairs. 

Looniis  v.  Wilhur,  5  Mason,  13. 

Where  wild  and  uncultivated  lands,  wholly  covered  with  wood  and  tim- 
ber, is  leased,  the  lessee  may  fell  a  part  of  the  wood  and  timber,  to  ren- . 
der  the  land  fit  for  cultivation,  without  being  liable  for  waste ;  but  he 
cannot  cut  down  such  timber  to  the  permanent  injury  of  the  inheritance. 

Jackson  d.  Church  v.  Brownson,  7  Johns.  227. {/ 

If  the  lessee  covenant,  that  he  will  leave  the  wood  at  the  end  of  the 
term  as  he  found  it ;  if  the  lessee  cut  down  the  trees,  the  lessor  shall  pre- 
sently have  an  action  of  covenant :  for  it  is  not  possible  for  him  to  leave 
the  trees  at  the  end  of  the  term.  So  that  the  impossibility  of  perform- 
ing the  covenant  shall  give  a  present  action  on  a  future  covenant.  But 
it  is  otherwise  in  the  case  of  a  house ;  for  there,  though  the  lessee  com- 
mit waste,  yet  he  may  repair  the  waste  done,  before  the  term  expires. 
7  Rep.  15,  Englefield's  case ;  5  Rep.  21,  Mayne's  case. 

The  cutting  of  trees  is  justifiable  for  house-bote,  hay -bote,  plough-bote, 
and  fire-bote. 

1  Inst.  53  b ;  Hobart's  R.  C.  296  ;  Bro.  Waste,  130.  By  the  common  law  the  lessee 
shall  have  them,  though  the  deed  does  not  express  it ;  but  if  he  takes  more  than  is 

necessary,  he  shall  be  punished  in  waste.    Bro.  Waste,  pi.  130. A  termor  may  take 

wood  for  them,  because  they  belong  to  him  of  common  right.  F.  N.  B.  59,  (N).  And 
ibid,  in  the  new  notes  there  (?)  says,  he  may  take  oaks,  elms,  ash,  &c,  for  repairs  of 

the  house,  and  underwood,  &c,  for  enclosures  and  firing. Covenant  by  lessor,  that 

lessee  shall  have  house-bote,  hay-bote,  and  fire-bote,  without  committing  any  waste, 
on  pain  of  forfeiting  the  lease,  is  no  more  than  what  the  law  appoints,  and  therefore 
the  covenant  is  vain.  Bro.  Eliz.  604,  pi.  18,  Archdeacon  v.  Jennor. If  lessee  justi- 
fies, in  waste,  for  cutting  oaks  for  fire-bote,  he  must  surmise  that  there  was  no  under- 
wood upon  the  land;  so,  it  seems,  where  he  takes  ash,  or  other  trees,  which  are  timber. 
Bro.  Waste,  pi.  89.     And  by  the  best  opinion,  oak  and  ash  under  the  age  of  sixteen 

years  may  be  cut  for  fire-bote.     Ibid. Lessee  for  life  or  years,  by  the  common  law, 

cannot  take  fuel  but  of  bushes  and  small  wood,  and  not  of  timber  trees :  but  if  lessor 
in  the  lease  grants  fire-bote  expressly,  then  if  lessee  cannot  have  sufficient  fuel  as  above, 
&c,  he  may  take  great  trees.     3  Le.  16,  Anon. 

The  tenant  may  take  sufficient  wood  to  repair  the  walls,  pales,  fences, 
hedges,  and  ditches  as  he  found  them  ;  but  he  cannot  make  new. 

1  Inst.  53  b.  In  an  action  of  waste  for  cutting  trees,  the  defendant  justifies,  &c, 
that  they  were  to  make  a  fence  with  pale.  And  by  Hobard,  it  was  good,  without  show- 
ing that  the  fence  was  made  of  pale,  &c,  and  now  in  decay.  Noy,  23,  Jenkins  v.  Jen- 
kins. ||  Whether  trees  were  cut  down  for  the  sake  of  repairs  or  not,  is  a  question  for 
a  jury.     Doe  dem.  Foley  v.  Wilson  ;  11  East,  56. || 

Cutting  dead  wood  is  no  waste. 
1  Inst.  53. 

But  converting  trees  into  coals  for  fuel,  where  there  is  sufficient  dead 
wood,  is  waste. 
1  Inst.  53. 

|3  Tenant  for  life  in  right  of  his  wife  of  land  and  slaves,  with  remainder 
in  fee  to  one-sixth  of  the  land  after  her  death,  cleared  out  wood-land  in 
the  centre  of  the  tract,  not  leaving  sufficient  timber  to  repair  the  place. 
Held,  that  if  there  was  open  land  sufficient  for  the  employment  of  the 


OF  WASTE.  427 

(C)  What  Acts  shall  be  deemed  "Waste. 

wife's  slaves,  when  the  husband  got  possession,  the  clearing  by  him  was 
waste. 
Adm'rs  of  Johnson,  v.  Ex'rs  of  Johnson,  2  Hill.  290. 

"Where  the  tenant  of  the  demised  premises  had  agreed  not  to  cut  down, 
destroy,  or  carry  away,  any  more  wood  or  timber  than  should  actually  be 
used  and  employed  on  the  farm,  and  that  he  would  not  make  any  manner 
of  waste,  sale  or  destruction  of  the  wood  or  timber  ;  it  is  waste  for  him  to 
cut  down  and  use  wood  growing  on  the  demised  premises  to  burn  bricks 
for  sale. 

Livingston  v.  Reynolds,  26  Wend.  115. 

It  is  not  waste  to  use  wood  for  the  common  purposes  of  the  estate ;  as, 
where  land  is  annexed  to  a  furnace,  cutting  wood  for  it  is  no  waste. 
Den  v.  Kenney,  2  South.  552. 

Digging  away  the  green  sward  on  the  banks  of  a  river,  and  cutting 
down  the  trees  growing  there,  so  as  to  expose  it  to  be  washed  by  the  river, 
is  waste. 

Scutton  v.  Trenton  Delaware  Falls  Company,  Sax.  Ch.  R.  094. 

In  an  action  of  dower,  the  court  allowed  a  rule  to  stay  waste  against 
persons  who  were  cutting  down  wyood  on  the  land  out  of  which  dower  was 
demandable. 

Harker  v.  Christy,  2  South.  TlT.fif 

3.   What  shall  be  deemed  Waste,  in  digging  for  Gravel,  Mines,  &c. 

If  the  tenant  digs  for  gravel,  lime,  clay,  brick-earth,  or  stone  hid  in 
the  ground,  or  for  mines  of  metal  or  coal,  or  the  like,  not  being  open  at 
the  time  of  the  lease,  it  is  waste. 

1  Inst.  53  b.  But  not  where  it  is  for  reparation.  See  post,  5,  Wliat  shall  be  deemed 
waste  with  respect  to  houses. 

If  a  man  hath  land  in  which  there  is  a  mine  of  coals,  or  the  like,  and 
maketh  a  lease  of  the  land  (without  mentioning  any  mines)  for  life  or  for 
years,  the  lessee  for  such  mines  as  were  open  at  the  time  of  the  lease 
made  may  dig  and  take  the  profits  thereof;  but  he  cannot  dig  for  any 
new  mine  that  was  not  open  at  the  time  of  the  lease  made,  for  that  would 
be  adjudged  waste. 

1  Inst.  54  b. 

Likewise,  if  there  be  open  mines  in  the  land,  and  the  owner  lease  it  to 
another  with  the  mines  in  it,  he  may  dig  in  the  open  mines,  but  not  in 
the  close  mines :  but  otherwise  it  would  be,  if  there  was  not  any  open 
mine  there ;  for  then  the  lessee  might  dig  for  mines,  otherwise  the  grant 
would  take  no  effect. 

1  Inst.  54  b. 

If  a  lessee  dig  slate  stone  out  of  the  land,  it  is  waste. 

2  Roll.  Abr.  810. 

And,  digging  for  stones,  unless  in  an  ancient  quarry,  is  waste,  though 
the  lessee  fill  it  up  again. 
Ow.  66,  Movie  v.  Moyle. 

Likewise,  if  he  have  a  lease  of  land,  in  which  there  was  a  coal-mine, 
but  not  open  at  the  time  of  the  lease ;  if  the  lessee  open  it,  and  assign 
his  interest,  it  is  still  waste  in  the  assignee.     But,  where  the  lease  is  of 
lands,  and  all  mines  in  it,  there  the  lessee  may  dig  in  it. 
5  Rep.  12  a,  b,  Sander's  case. 


423  OF   WASTE. 

(C)  What  Acts  shall  be  deemed  Waste. 

But,  if  lessee  of  land,  with  mines  of  coals,  iron,  and  stone,  digs  of  the 
coals,  iron,  and  stones,  so  much  as  is  necessary  for  him  to  use  "without 
selling,  it  is  not  waste. 

2  Roll.  Abr.  816. 

If  a  lessee  digs  the  earth,  and  carries  it  out  of  the  land,  action  of  waste 
lies. 

2  Roll.  Abr.  810. 

If  a  lessee  digs  for  gravel  or  clay,  for  reparation  of  the  house,  not  being 
open  at  the  time  of  the  lease,  it  is  not  waste ;  any  more  than  the  cutting 
of  trees  for  reparation. 

1  Inst,  53  b. 

jsA  tenant  in  dower  of  coal  lands  may  take  out  coal  to  any  extent  from 
a  mine  already  opened,  or  sink  new  shafts  into  the  same  vein. 
Croneh  v.  Puryear,  1  Rand.  258. 

Tenant  for  lives  renewable  for  ever  of  lands  with  bog,  cannot  cut  the 
turf  for  sale. 
Bouchier  v.  O'Grady,  2  Moll.  53G. 

But  where  a  bog  has  been  demised  as  a  bog,  or  all  the  land  demised  is 
bog,  and  only  valuable  as  such,  the  tenant  may  use  it  as  he  pleases. 
Anon.,  1  Hogan,  147. 

The  tenant  cannot  dig  turf  under  a  demise  of  "  improvable  bog,"  unless 
he  can  show  it  was  necessary  to  cut  away  the  turf  for  the  purpose  of  im- 
proving it. 

Pollard  v.  Smith,  1  Hogan,  391. 

Injunction  refused  to  restrain  tenant  from  cutting  turf  as  fire-bote. 
Count  de  Salis  v. ,  2  Moll.  516.£f 

4.    What  shall  be  deemed  Waste  in  Gardens,  Orchards,  Fish-ponds,  Dove-houses, 

Parks,  &c. 

If  the  tenant  cut  down  or  destroy  any  fruit  trees,  growing  in  the  gar- 
den or  orchard,  it  is  waste  :  but  if  such  trees  grow  upon  any  of  the  ground 
which  the  tenant  holdeth  out  of  the  garden  or  orchard,  it  is  no  waste. 

1  Inst.  3  a. 

Breaking  a  hedge  also  is  not  waste. 
1  Inst,  3  a. 

Likewise,  destruction  of  saffron  heads  in  a  garden,  is  not  waste. 
Rro.  Waste,  pi.  143,  cites  10  II.  7,  c.  2. 

||  But  ploughing  up  strawberry  beds  by  an  outgoing  tenant  has  been 
held  to  be  waste. 

Watherall  v.  Howells,  1  Camp.  R.  227. || 

;3A  tenant  at  will  not  allowed  to  break  up  an  ancient  meadow  or  pas- 
ture, though  the  land  is  mossy  and  requires  tillage. 
Martin  v.  Coggan,  1  Hogan,  120. 

But  it  is  not  waste  to  plough  up  land  held  under  lease,  if  the  land  was 
not  ancient  meadow  or  pasture  at  the  date  of  such  lease. 
Morris  v.  Morris,  1  Hogan,  238.$ 

If  the  tenant  of  a  dove-house,  warren,  park,  vivary,  estangues,  or  such 


OF  WASTE.  429 

(C)  What  Acts  shall  be  deemed  Waste. 

like,  takes  so  many,  that  so  much  store  is  not  left  as  he  found  at  the 
time  of  the  demise,  it  is  waste. 
1  Inst,  53  a ;  Hob.  R.  C.  296. 

Likewise,  if  the  lessee  of  a  pigeon-house  stops  the  holes,  that   the 
pigeons  cannot  build,  it  is  waste. 
1  Inst.  53  a. 

So  likewise,  suffering  the  pales  of  a  park  to  decay,  whereby  the  deer 
are  dispersed,  is  waste, 
i  Inst.  53  a. 

Also,  if  the  lessee  of  a  hop-ground  plough  it  up  and  sow  grain  there, 
it  is  wraste. 
Ow.  66,  Moyle  v.  Moyle. 

The  breaking  of  a  wear  is  waste,  and  so  of  the  banks  of  a  fishpond, 
80  that  the  water  and  fish  run  out. 
Ow.  66,  Movie  v.  Movie. 

5.    What  shall  be  deemed  Waste  with  respect  to  Houses. 

Waste  may  be  done  in  houses,  by  pulling  them  down  or  prostrating 
them,  or  by  suffering  the  same  to  be  uncovered,  whereby  the  spars  or 
rafters,  planches  or  other  timber  of  the  house,  are  rotten. 

1  Inst.  53  a. 

Default  of  coverture  of  a  house  is  waste,  though  the  timber  be  standing. 

2  Roll.  Abr.  815. 

But,  if  the  house  be  uncovered,  when  the  tenant  cometh  in,  it  is  no 
waste  in  the  tenant  to  suffer  the  same  to  fall  down. 

1  Inst.  53  a. 

Though  there  be  no  timber  growing  upon  the  ground,  yet  the  tenant 
at  his  peril  must  keep  the  houses  from  wasting. 

1  Inst,  53  a. 

If  a  lessee  razes  the  house,  and  builds  a  new  house,  if  it  be  not  so  long 
and  wide  as  the  other,  it  is  waste. 

2  Roll.  Abr.  815.  But  if  the  old  house  falls  by  being  ruinous,  and  the  lessee  builds 
a  new  one,  it  needs  not  be  so  long  and  wide  as  the  old  one.     Bro.  Waste,  pi.  93. 

So,  if  he  rebuilds  it  more  large  than  it  was  before,  it  is  waste ;  for  it 
will  be  more  charge  for  the  lessor  to  repair  it. 
1  Inst.  53  a. 

/3  It  is  not  waste  for  a  tenant  to  erect  a  new  edifice  upon  the  demised 
premises,  provided  it  can  be  done  without  materially  injuring  the  buildings 
or  other  improvements  already  on  the  premises. 

Windship  v.  Pitt,  3  Paige,  259. tf 

||  Where  a  lease  contained  a  proviso  for  re-entry,  if  the  lessee  committed 
waste  to  the  value  of  10s.,  and  the  lessor  brought  ejectment  on  this  pro- 
viso, because  the  tenant  had  pulled  down  some  old  buildings  of  more  than 
10s.  value,  and  erected  others  of  a  different  description,  it  was  held  that 
the  waste  mentioned  in  the  proviso  was  waste  producing  an  injury  to  the 
reversion  to  the  value  of  10s. ;  and  therefore  it  was  a  question  for  the 
jury,  whether  such  waste  to  that  value  had  been  committed. 
Doe  v.  Bond,  5  Barn.  &  C.  855. || 


430  OF   WASTE. 

(C)  What  Acts  shall  be  deemed  "Waste. 

But,  if  a  lessee  of  land  makes  a  new  house  upon  the  land  where  there 
was  not  any  before,  this  is  not  waste ;  for  it  is  for  the  benefit  of  the  lessor. 

2  Roll,  Abr.  815. 

But,  according  to  Lord  Coke,  if  the  tenant  build  a  new  house,  it  is 
waste ;  and  if  he  suffer  it  to  be  wasted,  it  is  a  new  waste.  Yet,  if  the 
house  be  prostrated  by  enemies  or  the  like  without  a  default  of  the  tenant,  - 
or  were  ruinous  at  his  coming  in,  and  fall  down,  the  tenant  may  build 
the  same  again  with  such  materials  as  remain,  and  with  the  other  timber, 
which  he  may  take  growing  on  the  ground  for  his  habitation  ;  but  he 
must  not  make  the  house  larger  than  it  was. 

Inst.  53  a.  Lord  Coke,  perhaps,  is  here  to  be  understood  of  building  a  new  house 
in  the  room  of  one  of  which  was  before  on  the  premises ;  and  thus  Rolle  and  he  may 
be  reconciled. 

If  the  house  be  uncovered  by  tempest,  the  tenant  must  in  convenient 
time  repair  it. 

1  Inst.  53  a. 

If  a  lessee  fling  down  a  wall  between  a  parlour  and  a  chamber,  by 
which  he  makes  a  parlour  more  large,  it  is  waste ;  because  it  cannot  be 
intended  for  the  benefit  of  the  lessor,  nor  is  it  in  the  power  of  the  lessee 
to  transpose  the  house. 

2  Roll.  Abr.  815.    ||  See  Young  v.  Spencer,  9  Barn.  &  C.  145. || 

So,  if  he  pull  down  a  partition  between  chamber  and  chamber,  it  is 
waste. 

Bro.  Waste,  143. 

Or,  if  a  lessee  pull  down  a  hall  or  parlour,  and  make  a  stable  of  it,  it 
is  waste. 
2  Roll.  Abr.  815. 

If  a  lessee  pull  down  a  garret  over-head,  and  make  it  all  one  and  the 
same  thing,  it  is  waste. 
2  Roll.  Abr.  815. 

If  a  lessee  permit  a  chamber  fore  in  decasu  pro  defectu  plaustrationis, 
per  quod  grossum  maker  emium  devenit  putridum,  et  camera  ilia  turpis- 
sima  et  foedissima  devenit,  action  of  waste  lies  for  it. 
2  Roll.  Abr.  815. 

So,  if  a  lessee  permit  the  walls  to  be  in  decay  for  default  of  daubing, 
per  quod  makeremium  devenit  putridum,  action  of  waste  lies. 

2  Roll.  Abr.  815. 

The  breaking  of  a  pale  or  of  a  wall  uncovered  is  not  waste. 

Bro.  Waste,  pi.  94. 

But  the  breaking  of  a  wall  covered  with  thatck,  and  of  a  pale  of  timber 
covered,  is  waste. 

Bro.  Waste,  pi.  94. 

Burning  the  house  by  negligence  or  mischance  is  waste. 
Inst.  53  b.     But  by  the  6  Ann.  c.  31,  no  action  is  to  be  prosecuted  against  any 
person  in  whose  house  or  chamber  any  fire  accidentally  begins. 

If  the  tenant  do  or  suffer  waste  to  be  done  in  houses,  yet,  if  he  repair 
them  before  any  action  brought,  there  lieth  no  action  of  waste  against 
him ;  but  he  cannot  plead,  quod  non  fecit  vastum,  but  the  special  matter. 

1  Inst.  53  a. 


OF    WASTE.  431 

(C)  What  Acts  shall  be  deemed  Waste.     (Removable  Fixtures.) 
G.   Of  what  things  annexed  to  the  Freehold  Waste  may  be  committed. 

The  removing  of  a  post  in  a  house  is  waste. 

42  E.  3,  6.  Of  posts,  &c,  fixed  in  the  land,  and  not  to  the  walls  by  termor,  and 
taken  off  within  his  term,  waste  does  not  lie,  for  the  house  is  not  impaired  by  it.  Per 
Kingsmill,  J.,  and  Grevill,  Serjt     Quod  non  negatur.    Bro.  Waste,  pi.  104. 

So,  the  removing  of  a  door. 

42  E.  3,  6  ;  1  Inst.  53.  In  waste  of  taking  away  doors,  the  lessee  pleaded  that  he 
erected  them,  and  the  court  took  a  difference  between  outer  doors  and  inner  doors.  Per 
three  Js.  Lessee  may  take  away  the  inner  doors  within  the  term,  but  not  the  outer 
doors.     Moo.  177,  pi.  315.  Cooke's  case,  alias  Cook  v.  Humphrey. 

So,  the  removing  of  a  window. 

42  E.  3,  6.  It  is  waste,  though  the  glass  window  be  glazed  by  the  tenant  himself. 
1  Inst.  53  a. 

The  digging  up  a  furnace  annexed  to  the  franktenement,  and  selling 

it,  is  waste. 

Bro.  Waste,  pi.  143.  So,  though  annexed  by  the  tenant  himself.  1  Inst.  53  a.  The 
difference  is  between  a  furnace  fixed  to  the  middle  or  to  the  wall  of  the  house :  in  the 
first  case  the  lessee  may  take  it  away,  but  not  in  the  last.  Per  Dyer  and  Owen,  Js., 
0\v.  71,  in  case  of  Day  v.  Austin. A  furnace  fixed  in  medio  domus  is  but  a  chat- 
tel, and  removable ;  but  otherwise,  if  fixed  to  the  walls.  Per  Walmsley.  Said  to 
have  been  agreed  in  Dyer's  time.  Cro.  Eliz.  in  case  of  Day  v.  Bisbich.  So  of  a  dyer's 
vat  fixed  to  the  walls,  adjudged  not  removable  on  an  attachment.  Cro.  Eliz.  374,  pi. 
24,  Day  v.  Bisbich. 

The  removing  of  a  bench  is  waste,  though  annexed  by  the  tenant  him- 
self. 
Bro.  Waste,  pi.  143 ;  1  Inst.  53  a. 

If  wainscot  annexed  to  the  house  be  taken  away,  it  is  waste. 

Bro.  Waste,  pi.  143  ;  1  Inst.  153  a.  Though  annexed  by  the  tenant  himself.  Id. 
ibid.  If  fixed  to  a  wall,  it  is  waste.  Per  Anderson,  Cro.  Eliz.  374,  in  case  of  Day  v. 
Bisbich.  Wainscot  annexed  by  the  lessor  or  lessee,  is  parcel  of  the  house,  and  whether 
by  great  or  little  nails,  screws,  or  irons,  put  through  the  post  or  walls  of  the  house,  is 
all  one ;  but  if  by  any  way  whatever  it  be  fixed  to  the  post  or  walls  of  the  house,  it  is 
waste  for  lessee  to  remove  them ;  and  shall  pass  by  grant  of  the  house  in  the  same 
manner  as  the  ceiling  and  plastering ;  4  Rep.  64,  cites  it  as  resolved,  Mich.  41  &  42 
Eliz.  C.  B.  by  the  whole  court,  in  case  of  Warner  v.  Fleetwood.  But  per  Dodderidge, 
J.,  wainscot  may  as  well  be  removed  by  a  lessee  as  arras  hangings.  Roll.  210,  in 
Bridgman's  case. 

Of  tables  dormant  and  fixed  in  the  land,  and  not  to  the  walls  by  termor, 

and  taken  off  within  his  term,  waste  does  not  lie ;  for  the  house  is  not 

impaired  by  it.     Per  Kingsmill,  J.,  and  Grevill,  Serjt. 

Bro.  Waste,  pi.  104.  Tables  dormant  fixed  cannot  be  removed,  and  if  they  are,  it  is 
waste.     Per  Anderson,  C.  J.,  Cro.  374,  pi.  24,  E.,  in  case  of  Day  v.  Bisbich. 

Beating  down  a  wooden  wall,  or  suffering  a  brick  wall  to  fall,  is  no  waste, 

unless  it  be  expressly  alleged  that  the  walls  were  coped  or  covered. 

Dver,  108  b,  pi.  31,  Earl  of  Bedford  v.  Smith.  So  of  a  mud  wall,  is  waste.  Bro. 
Waste,  pi.  143. 

If  waste  be  assigned  in  pulling  up  a  plank  floor  and  mangers  of  a 
stable,  plaintiff  must  show  that  the  same  were  fixed. 
Dyer,  108  b,  pi.  31. 

If  lessee  erects  a  partition,  he  cannot  break  it  down  without  being  liable 
to  an  action  of  waste,  for  he  has  joined  it  to  the  franktenement. 
Mo.  178,  Cooke's  case. 

Shelves  are  parcel  of  the  house,  and  not  to  be  taken  away ;  and  though 


432  OF    WASTE. 

(C)  What  Acts  shall  be  deemed  Waste.     {Removable  Fixtures.) 

it  is  not  showed  that  the  shelves  were  fixed,  it  ought  to  be  intended  that 
they  were  fixed.     Per  Coke,  C.  J. 

Cro.  Eliz.  329,  Pyot  v.  Lady  St.  John ;  2  Bulstr.  113. 

Pavement  is  a  structure,  for  they  use  lime  to  finish  it. 
Cro.  Eliz.  329,  Pyot  v.  Lady  St,  John  ;  2  Bulstr.  113.     And  held,  that  it  is  within 
the  intention  of  the  covenant  for  repairing  edifices,  buildings,  and  it  is  quasi  building. 

If  the  tenant  suffers  the  groundsels  to  waste  in  his  default  of  defence  or" 
removing  the  water  from  off  them,  or  of  dirt  or  dung  or  other  nuisance 
which  lies  or  hangs  upon  them,  the  tenant  shall  be  charged,  for  he  is 
bound  to  keep  them  in  as  good  case  as  he  took  them. 

Ow.  43,  Stickleborne  v.  Hatchman.  If  by  not  scouring  a  ditch  or  moat,  the  ground- 
sels of  the  house  are  putrified,  waste  shall  be  assigned  in  domibus  pro  non  scourando. 
Id.  ibid. 

[The  rule  which  seems  pretty  clearly  established  by  the  above  cases, 
that  whatever  is  annexed  to  the  freehold  becomes  part  of  it,  and  cannot 
be  removed  without  doing  waste,  has  been  relaxed  in  later  times,  upon 
motives  of  public  policy,  as  between  two  descriptions  of  persons,  that  is, 
landlord  and  tenant,  and  tenant  for  life  or  in  tail,  and  the  remainder-man 
or  reversioner.     As  between  landlord  and  tenant,  it  is  now  admitted,  that 
the  latter  may,  during  the  term,  take  away  all  such  chimney-pieces,  wain- 
scot, &c,  and  all  such  things  necessary  for  trade,  as  brewing  vessels,  cop- 
pers, fire-engines,  cider-mills,  &c,  as  he  has  himself  put  up  or  erected. 
We  have  said  during  the  term,  for  if  he  remove  them  after  the  term,  he 
will  be  a  trespasser. (a)     And  as  between  tenant  for  life  or  in  tail,  and 
the  remainder-manor  reversioner,  it  is  also  admitted,  that  the  former  may 
remove  fire-engines,  cider-mills,  coppers,  &c,  which  he  has  erected,  and 
thereby  not  only  enjoys  the  profits  of  the  estate,  but  likewise  carries  on 
a  species  of  trade.     And  if  he  does  not  remove  them  in  his  lifetime,  they 
go  to  his  personal  representatives.     But  as  between  heir  and  executor, 
the  old  rule  of  law  seems  still  to  hold ;  for  though  in  an  action  of  trover 
by  an  executor  against  an  heir  for  a  cider-mill,  tried  at  Worcester  be- 
fore Lord  C.  B.  Comyns,  his  lordship  was  of  opinion,  that  it  was  personal 
estate,  and  directed  the  jury  to  find  for  the  executor ;  yet  Lord  Mansfield 
has  observed,  that  that  case  in  all  probability  turned  upon  a  custom  :  and 
that  where  no  circumstance  of  that  kind  arises,  the  rule  shall  still  hold  in 
favour  of  the  heir,  seems  fully  established  by  the  decision  of  the  Court 
of  King's  Bench  in  Lawton  v.  Lawton,  Easter,  22  G.  3. 

j3  Yan  Ness  v.  Packard,  2  Pet.  R.  143  ;tf  Ex  parte  Quincy,  1  Atk.  477;  Lord  Dudley 
v.  Ld.  Ward,  Ambl.  113;  Bull.  N.  P.  34,  S.  P.;  Poole's  case,  1  Salk.  368;  Lawton 
v.  Lawton,  3  Atk.  13  ;  { 1  II.  Black.  258,  Fitzherbert  v.  Shaw ;  Ibid.  259.  n.,  Lawton 
v.  Salmon ;  3  Esp.  Rep.  11,  Dean  v.  Allalley;  2  East,  88,  Penton  v.  Robert;  4  Esp. 
Rep.  33,  S.  C. ; }  ||  Lawton  v.  Salmon,  1  II.  Black.  259,  notes ;  Penton  v.  Robart, 
2  East,  88.  (a)  See  Fitzherbert  v.  Shaw,  1  II.  Black.  258. ||  Vide  3  Atk.  16,  by 
Sanders,  note.] 

{And  the  relaxation  of  the  old  rule  in  favour  of  tenants  extends  only 
to  erections  for  the  purposes  of  trade.  A  tenant  of  a  farm  cannot  re- 
move buildings  annexed  to  the  freehold,  which  he  has  erected  for  the 
ordinary  purposes  of  husbandry,  and  the  better  enjoyment  of  the  profits 
of  the  land,  though  he  thereby  leaves  the  premises  in  the  same  state  as 
when  lie  entered. 

3  East,  28,  Elwes  v.  Maw.    Vide  Dean  v.  Allalley  and  Penton  v.  Robart,  ubi  supra.) 

||  In  the  leading  cases  above,  (in  3  Atk.  13,  Amb.  113,  and  1 II.  Black. 
259,)  the  courts  may  be  considered  as  having  decided  mainly  on  the 


OF  WASTE.  433 

(C)  What  Acts  shall  be  deemed  Waste.     {Removable  Fixtures.) 
ground,  that  where  the  fixed  instrument,  engine,  or  utensil  (and  a  build- 
in^  covering  the  same  falls  within  the  same  principle)  was  an  accessory  to 
a  matter  of  a  personal  nature,  that  it  should  be  considered  as  personalty. 
Lord  Hardwicke  says,  in  the  case  in  Ambler,  "  A  colliery  is  not  only  an 
enjoyment  of  the  estate,  but  in  part  carrying  on  a  trade."     And  in  3  Atk. 
he  says,  "  One  reason  that  weighs  with  me,  is  its  being  a  mixed  case  be- 
tween enjoying  the  profits  of  the  lands,  and  carrying  on  a  species  of  trade  ; 
and  considering  it  in  this  light,  it  comes  very  near  the  instances,  in  brew- 
houses,  &c,  of  furnaces  and  coppers."     Upon  the  same  principle,  Lord 
C.  B.  Comyns  may  be  considered  as  having  decided  the  case  of  the  cider- 
mill,  i.  e.  as  a  mixed  case,  between  enjoying  the  profits  of  the  land  and 
carrying  on  a  species  of  trade,  that  of  making  cider.     But  the  case  of 
^  buildings  for  trade  has  always  been  put  as  a  known  allowed  exception  from 
•  the  general  rule,  and  the  courts  will  not  extend  the  exception  to  buildings 
erected  for  mere  purposes  of  agriculture.     Accordingly  where  a  tenant  in 
agriculture  had  erected  at  his  own  expense,  and  for  the  more  convenient 
;  occupation  of  his  farm,  a  beast-house,  carpenter's  shop,  fuel-house,  pump- 
1  houses,  and  fold-yard  wall,  of  brick  and  mortar,  and  let  into  the  ground, 
!  it  was  held,  that  he  could  not  remove  them  even  during  the  term  ;  though 
he  thereby  left  the  premises  in  the  same  state  as  when  he  entered. 

Ehves  v.  Maw,  3  East,  38.     See  the  learned  and  elaborate  judgment  of  Lord  Ellen- 
!  borough. 

Where  the  tenant  erected  a  building  (with  permission  of  the  landlord) 
\  on  a  brick  foundation  let  into  the  ground,  with  a  chimney  belonging  to  it, 
:  and  with  a  wooden  superstructure  brought  from  another  place  where  the 
tenant  had  carried  on  business,  and  the  building  was  used  for  the  purpose 
|  of  making  varnish,  it  was  held  removable.     The  building  here  came  within 
J  the  exception  in  favour  of  trade.     Though  Lord  Kenyon  in  his  judgment 
-  hinted  that  gardeners  and  nursery  men  might  remove  greenhouses  and 
:  hothouses,  yet  this  dictum  has  been  questioned  by  Lord  Ellenborough,  3 
East,  38,  and  by  Dallas,  C.  J.,  2  Bro.  &  B.  58 ;  but  it  seems  that  a  nur- 
seryman by  trade  may  clearly  sell  young  trees  raised  on  the  demised 
land,  though  it  seems  otherwise  as  to  a  farmer  rearing  trees  to  fill  up  the 
',  demised  orchards. 

Penton  v.  Robart,  2  East,  R.  88.    See  per  Heath,  J.,  Windham  v.  Way,  4  Taunt.  316. 

With  respect  to  ornamental  fixtures,  as  chimney-pieces,  wainscots,  &c, 
which  are  removable,  (vide  supra,)  these  are  also  exceptions  to  the  gene- 
'•  ral  rule,  and  therefore  to  be  fairly  considered,  but  not  to  be  extended : 
;  and  accordingly  in  a  late  case  it  was  held,  that  a  tenant  could  not  remove 
j  a  conservatory  erected  by  him  on  a  brick  foundation  and  attached  to  the 
'  demised  dwelling-house,  and  communicating  with  it  by  windows  opening 
'  into  the  conservatory,  and  a  flue  passing  into  the  parlour  chimney ;  since 
]  the  building  had  become  part  of  the  freehold. 

Buckland  v.  Butterfield,  2  Bro.  &  Biug.  54 ;  4  Moo.  R.  440 ;  and  see  Farrant  v. 
Thompson,  5  Barn.  &  A.  820. 

And  though  the  building  is  used  for  the  purposes  of  trade,  still  if  the 

tenant  expressly  covenants  to  deliver  up  all  buildings  erected  during  the 

I  term  he  cannot  remove  it. 

Naylor  v.  Collinge,  1  Taunt.  19 ;  and  see  Thresher  v.  East  London  Water- Works, 
;  2  Barn.  &  Cres.  008. || 

.      Vol.  X.— 55  2  0 


434  OF  WASTE. 

(D)  What  shall  he  deemed  Waste  with  respect  to  ecclesiastical  Persons. 

With  respect  to  ecclesiastical  persons,  it  has  been  held,  that  an  action 
on  the  case  will  lie  for  dilapidations. 
3  Lev.  268,  Jones  v.  Hill. 

And  it  has  been  said  that  dilapidation  of  ecclesiastical  places,  houses, 
and  buildings,  is  a  good  cause  of  deprivation. 

3  Inst.  204. 

If  a  bishop  cut  and  sell(a)  the  trees  of  the  bishopric,  for  this  waste  a 
prohibition  shall  be  granted,  commanding  him  to  cease  doing  such  waste. 
Resolved  in  parliament. 

11  Rep.  49,  cites  as  the  Bishop  of  Durham's  case  ;  ||see  infra,  {a)  But  it  seems  he 
may  sell,  and  apply  the  money  in  repairs.     Amb.  176  ;  3  Meriv.  428.  || 

So,  if  a  parson  or  vicar  waste  the  trees  of  his  parsonage  or  vicarage,  a 
prohibition  shall  be  granted ;  for  it  is  the  dowry  of  the  church. 

11  Rep.  49,  Liford's  case.  The  patron  may  have  the  prohibition.  ||See  Barn.  C.  R. 
399  ;  2  Atk.  217  ;  Amb.  176;  2  Bro.  C.  C.  552,  acc.\\ 

So,  if  a  prebendary  waste  the  trees  of  his  prebend,  the  patron  may  have 
a  prohibition.  Between  Ackland  and  Atwell,  prohibition  granted  by  the 
Lord  Coventry,  Lord  Keeper,  for  the  prebend  of  Catton  in  Devon. (b) 

||(6)  See  this  case,  2  Roll.  Abr.  813  ;  3  Swanst.  499,  notd.\\ 

It  has  been  holden,  that  if  a  bishop,  parson,  or  other  ecclesiastical  per- 
son cut  down  trees  upon  the  lands,  unless  it  be  for  reparation  of  their 
ecclesiastical  houses,  and  do  or  suffer  to  be  done  any  dilapidations,  they 
may  be  punished  for  the  same  in  the  Ecclesiastical  Court,  and  a  prohibi- 
tion will  not  lie  in  the  case :  and  that  the  same  is  a  good  cause  of  depri- 
vation of  them  of  their  ecclesiastical  livings  and  dignities.  But,  yet,  for 
such  waste  done,  they  may  be  also  punished  by  the  common  law,  if  the 
party  will  sue  there. 

Godb.  259,  pi.  357,  Salisbury  Bishop's  case. 
On  a  motion  for  prohibition,  the  suggestion  appeared  to  be,  that  the 
parson  had  digged  and  found  lead  mines  in  his  glebe,  and  had  felled  tim- 
ber ;  and  it  was  insisted  that  this  was  waste,  and  prohibitable  by  35  E.  1, 
Be  non  prosternend.  arbores,  #c.  But  per  cur. — It  lies  not  for  mines ; 
for  then  mines  in  glebe-land  can  never  be  opened. 

Lev.  107,  Countess  of  Rutland's  case. 
||An  uninterested  stranger  cannot  obtain  a  writ  of  prohibition  to  restrain 
a  bishop  from  committing  waste  in  the  possessions  of  hissee  ;  and  it  seems 
that  the  bishop  can  only  be  restrained  by  a  proceeding  at  suit  of  the 
crown  or  of  the  metropolitan.     So  also  as  to  deans  and  chapters. 

Jefferson  v.  Bishop  of  Durham,  1  Bos.  &  Pul.  105  ;  and  see  tit  Prohibition  (A),  Vol. 
viii.  Wither  v.  Dean  and  Chapter  of  Winchester,  3  Meriv.  421 ;  Herring  v.  Dean  and 
Chapter  of  St.  Paul's,  3  Swanst.  492  ;  and  see  note,  Ibid.|| 

(E)  What  Waste  shall  be  deemed  excusable. 
It  may  be  observed  in  general,  that  waste  which  ensues  from  the  act 
of  God  is  excusable. 
1  Inst.  53  a. 
Thus,  if  a  house  falls  by  tempest,  the  tenant  shall  be  excused  in  action 

of  waste. 

But,  if  'it  be  uncovered  by  tempest,  and  stand  there,  if  the  tenant  has  sufficient  time  to 
repair  it,  and  does  not,  the  lessor,  if  the  lease  be  made  on  condition  of  re-entry  fur  waste, 
may  re-enter,  but  not  immediately  upon  the  tempest ;  for  it  is  no  waste  till  the  tenant 


OF  WASTE.  435 

(F)  "What  Waste  justifiable,  by  Interest  of  the  Party. 

suffers  it  to  be  so  long  unrepaired,  that  the  timber  be  rotted ;  per  Hull,  and  then  it  is 

waste.    Bro.  Conditions,  pi.  40. If  he  suffer  it  to  continue  unrepaired,  so  that  at  last 

the  house  is  cast  down  by  a  tempest,  it  is  waste ;  Mo.  G2,  pi.  173. 

Likewise,  if  a  house  be  abated  by  lightning,  or  thrown  down  by  a  great 
wind,  it  is  not  waste. 

Inst.  53  a. 

So,  if  apple  trees  be  torn  up  by  a  great  wind,  if  lessee  afterwards  cut 
them,  it  is  not  waste. 

Bro.  Waste,  pi.  39  ;  2  Roll.  Abr.  820,  contrci;  20  H.  G,  c.  1  b  ;  jSShult  v.  Barker, 
12  S.  &  R.  272.0 

If  the  banks  be  well  repaired  by  the  lessee,  and  the  water  notwith- 
standing subvert  them,  and  surround  his  meadow,  by  which  it  is  become 
rushy,  it  is  not  waste. 

Lessee  for  years  covenanted  upon  a  penalty  of  \0l.  to  repair  the  banks  of  a  river. 
They  were  afterwards  broken  down  by  a  sudden  outrageous  flood.  Fitzherbert  and 
Shelly  held,  that  he  is  excused  the  penalty,  because  it  is  the  act  of  God  ;  but  he  is 
bound  by  his  covenant  to  repair  it,  which  he  must  do  in  convenient  time.    Dyer,  33  a, 

pi.  10,  11. If  banks  on  the  river   Trent  are  unrepaired,  it  is  waste;  per  all  the 

justices ;  because  the  Trent  is  not  so  violent,  but  that  the  lessee  by  his  policy  and  in- 
dustry may  well  enough  preserve  the  banks,  and  make  the  water  to  run  within  its 
bounds  ;  but  the  violence  of  the  sea  is  such,  that  it  cannot  be  restrained  by  any  policy ; 
and,  therefore,  it  is  no  waste  if  that  by  tempestuousness  breaks  the  walls  and  sur- 
rounds the  land.     Mo.  69,  pi.  187,  Griffith's  case. 

The  lessor  cannot  give  trees  during  the  tenant's  lease.  But  if  he  grants 
them  to  a  stranger,  and  commands  the  tenant  to  cut  and  deliver  them, 
who  does  it,  this  shall  excuse  him  in  an  action  of  waste.  And  yet  the 
tenant  was  not  bound  by  law  to  obey  and  execute  this  command. 

Bro.  Done,  Sec,  pi.  13. 

(F)  What  Waste  shall  be  deemed  justifiable,  by  reason  of  the  Interest  of  the  Party. 

Tenant  in  tail  may  commit  waste  in  houses  as  well  as  in  all  other  parts 
of  the  estate,  notwithstanding  any  restraint  to  the  contrary,  and  no  in- 
stance can  be  shown  where  a  tenant  in  tail  has  been  restrained  from 
committing  waste  by  injunction  of  the  Court  of  Chancery. 

Cas.  temp.  Talb.  16,  Glenorchy  v.  Bosville.  And  his  lordship  said,  an  injunction 
was  refused,  in  Mr.  Saville's  case  of  Yorkshire,  who  being  an  infant,  and  tenant  in 
tail  in  possession,  and  in  a  very  bad  state  of  health,  and  not  likely  to  live  to  full  age, 
cut  down  by  his  guardian  a  great  quantity  of  timber,  just  before  his  death,  to  a  very 
great  value ;  the  remainder-man  applied  here  for  an  injunction  to  restrain  him,  but 
could  not  prevail.     Ibid. 

If  tenant  in  tail  grants  all  his  estate,  his  grantee  is  dispunishable  of 
waste ;  so,  such  grantee's  grantee  is  also  dispunishable.     Per  Clerk,  J. 
3  Le.  121,  pi.  173,  Anon. 

If  a  man  devises  land  to  two  in  tail,  and  after  the  one  devisee  dies 

without  issue,  by  which  the  reversion  in  fee  of  one  moiety  reverts  to  the 

heir  of  the  donor,  but  the  other  devisee  is  tenant  for  life  of  the  whole, 

and  after  he  commits  waste  ;  action  of  waste  lies  against  him  by  the  heir 

of  the  donor  for  the  one  moiety. 

Lands  were  given  to  A  and  B,  and  the  heirs  of  their  two  bodies.  A  died  without  issue, 
and  the  i-emainder  of  the  half  reverted  to  the  donor.  He  brought  waste  against  B,  of 
houses  and  lands  to  him  demised,  and  agreed  that  the  writ  was  good :  but  it  was 
questioned,  if  the  count  shall  be  general,  or  of  a  half  only,  notwithstanding  that  both 
were  tenants  in  common  of  the  reversion.     2  Brownl.  133,  Mallet  v.  Mallet. 

But  action  of  waste  does  not  lie  against  tenant  in  tail  after  possibility, 


436  OF   WASTE. 

(F)  What  Waste  justifiable,  by  Interest  of  the  Party. 

for  the  greatness  of  the  estate  of  inheritance  which  was  once  in  him ; 
and  also,  as  some  say,  because  the  estate  was  not  ivitltin  the  statute  at 
the  creation. 

11  Rep.  80  a,  Lewis  v.  Bowles.     But  such  tenant  shall  not  have  the  trees,  &c, 

which  lie  cuts.    4  Rep.  63,  Herlakenden's  case. And  such  tenant  may  be  restrained 

in  equity.     See £>oo><. 

If  lands  are  given  to  the  husband  and  wife,  and  to  the  heirs  of  the  body- 
of  the  husband,  the  remainder  to  the  husband  and  wife,  and  to  the  heirs 
of  their  two  bodies  begotten ;  and  the  husband  dies  without  issue ;  the 
wife  shall  not  be  tenant  in  tail  after  possibility ;  for  the  remainder  in 
special  tail  was  utterly  void,  for  that  it  could  never  take  effect.  For  so 
long  as  the  husband  should  have  issue,  it  should  inherit  by  force  of  the 
general  tail ;  and  if  the  husband  die  without  issue,  then  the  special  tail 
cannot  take  effect,  inasmuch  as  the  issue  which  should  inherit  in  special 
tail  must  be  begotten  by  the  husband ;  and  so  the  general,  which  is  larger, 
and  greater,  hath  frustrated  the  special,  which  is  less ;  and  the  wife,  in 
that  case,  shall  be  punished  for  waste. 

1  Inst.  28  b. 

It  has  been  agreed,  that  tenant  for  years  may  cut  wood  ;  but  it  has 

been  doubted,  if  tenant  at  will  may :  but  it  seems,  that  as  long  as  tenant 

at  will  is  not  countermanded  he  may  cut  seasonable  wood,  &c. 

Bro.  Waste,  pi.  114.  Tenant  at  will  cannot  justify  cutting  underwood  without 
license.     Per  Littleton,  Bro.  Waste,  pi.  131. 

Where  a  man  leases  a  ivood  which  co?isists  only  of  great  trees,  the  les- 
see cannot  cut  them. 
Bro.  Waste,  pi.  126. 

But  a  lessee  may  justify  the  cutting  of  trees  for  reparation  of  houses. 

Hobart's  Rep.  Case,  296  ;  1  Inst.  54  b.  But  in  such  case  the  termor  shall  pay  the 
wages  and  salary  of  the  workmen  out  of  his  oivn  money,  and  not  cut  wood  to  sell,  to 
pay  the  wages.  Bro.  Waste,  pi.  112. — And  if  he  cut  trees  for  reparations,  and  suffers 
the  trees  to  lie  and  putrify,  it  is  waste.  Ibid.  ||  Whether  trees  were  cut  down  bond 
fide  for  the  sake  of  repairs  is  a  question  for  a  jury.     Doe  v.  Wilson,  11  East,  56. || 

Nevertheless,  if  lessee  cuts  trees  for  reparation,  and  sells  them,  and  after 
buys  them  again,  and  employs  them  for  reparation,  it  is  waste  by  the  sale. 
1  Inst.  53  b. 

So,  if  lessee  cuts  trees,  aud  sells  tliem  for  money,  though  with  the 
money  he  repairs  the  house,  yet  it  is  waste. 

1  Inst.  53  b.  ||  Gower  v.  Eyre,  Coop.  Chan.  Ca.  156,  but  it  seems  otherwise  as  to 
ecclesiastical  persons.    Amb.  176;  3  Meriv.  428. || 

As  to  the  cutting  of  timber  trees  for  repairs  by  lessee,  there  is  no  differ- 
ence whether  the  lessor  or  lessee  covenants  to  repair  the  houses  ;  for  in 
either  case  it  is  not  waste  if  lessee  cuts  them. 

Mo.  23,  pi.  80,  Anon.  If  lessor  covenants  to  repair  the  houses  and  does  not,  lessee 
may  cut  down  trees  for  the  repairing  of  the  houses.     Brownl.  240,  Anon. 

If  a  house  be  prostrated  by  enemies  of  the  king,  or  such  like  toithout 
default  of  the  lessee,  the  lessee  may  rebuild  it  with  the  same  materials 
that  remain,  and  may  cut  other  timber  upon  the  land  to  rebuild  it,  but  he 
must  not  make  the  house  larger  than  it  was. 

1  Inst.  53  a.  If  strangers,  enemies  of  the  king,  destroy  a  house,  waste  does  not  lie; 
but  control,  it'  it  be  by  traitorous  subjects  of  the  king.     Bro,  Waste,  pi.  15. 

So,  if  the  house  was  ruinous  at  the  time  of  the  lease,  and  fell  within 
the  term,  this  is  not  waste  in  the  tenant. 

2  Inst.  53  a ;  Bro.  Waste,  pi.  130. 


OF  WASTE.  437 

(F)  What  Waste  justifiable,  by  Interest  of  the  Party. 

But  the  lessee  shall  not  cut  trees  to  make  a  nezv  house  where  there 
was  not  any  at  the  time  of  the  lease. 
Hobart's  Rep.  Case,  290. 

So,  if  a  lessee  suffers  a  house  to  fall  for  default  of  covering,  which  is 
waste,  he  cannot  cut  trees  to  repair  the  house. 
Bro.  Waste,  pi.  39. 

And  in  general,  if  the  tenant  suffer  the  house  to  be  wasted,  he  cannot 

justify  the  felling  of  timber  to  repair  it. 

1  Inst.  53  b.  And  in  such  ease  the  felling  of  timber  to  repair  the  same  is  double 
waste.     Ibid. 

,       If  a  house  be  ruinous  at  the  time  of  the  lease,  though  the  lessee  is  not 

bound  to  repair  it,  yet  he  may  cut  trees  to  repair  it. 

1  Inst.  54  b.  If  the  tenant  covenants  to  repair  such  ruinous  houses,  he  may  take 
trees  for  it.     Bro.  Waste,  pi.  130,  cites  12  II.  8,  1. 

The  tenant  likewise  may  dig  for  gravel  or  clay  for  reparation  of  the 
house,  though  the  soil  was  not  open  when  the  tenant  came  in ;  and  it  is 
justifiable  as  well  as  the  cutting  of  trees. 

1  Inst.  53  b. 

So,  with  regard  to  a  stable,  if  it  fall  without  default  of  the  lessee  in  the 
time  of  the  lessor,  the  lessee  may  take  trees  in  the  time  of  the  heir  to  make 
,  a  neiu  stable,  if  it  be  of  necessity. 
Bro.  Waste,  pi.  G7. 

But,  if  the  stable  falls  in  default  of  the  lessee,  in  time  of  the  lessor,  he 
cannot  in  time  of  the  heir  cut  trees  to  make  a  new  stable. 

Bro.  Waste,  pi.  67.  Issue  was  taken  whether  it  was  well  repaired  in  the  time  of 
the  plaintiff  (the  heir)  and  fell  in  the  time  of  the  plaintiff,  in  default  of  the  defendant. 

Cutting  wood  to  burn,  where  the  tenant  has  sufficient  hedgeivood,  is  waste. 
F.  N.  B.  59,  (M). 

Where  lessee  for  years  has  power  to  take  hedge-bote  by  assignment, 
yet  he  may  take  it  without  assignment ;  for  the  affirmative  does  not  take 
away  the  power  which  the  law  gives  him. 

Dy.  19,  pi.  115,  Anon. 

If  lessor  except  his  trees  in  his  lease,  the  lessee  shall  not  have  fire-bote, 

hay-bote,  &c,  which  he  should  have  otherwise :  and  the  property  of  the 

trees  is  in  the  lessor  himself. 

4  Le.  162,  pi.  269,  Sir  Richard  Lewkner's  case.  Upon  such  reservation  waste  will 
not  lie  against  the  tenant  for  cutting  trees,  because  they  are  not  parcel  of  the  thing 
leased,  but  trespass  lies  in  such  case.  Dy.  19,  pi.  110  ;  IIGoodright  v.  Vivian,  8  East, 
190.||  J         V  6 

Yet  it  has  been  said,  that  lessee  for  years,  the  trees  being  excepted,  has 
liberty  to  take  the  shrowds  and  loppings  for  fire-bote  ;  but  if  he  cuts  any 
tree,  it  shall  be  waste,  as  w ell  for  the  lopping  as  for  the  body  of  the  tree. 

Noy.  29,  Rich  v.  Makepeace. 

If  a  tenant  that  has  fire-bote  to  his  house  in  another  mans  land,  cuts 
wood  for  that  intent  to  take  his  bote-wood,  and  the  owner  of  the  land 
takes  it  away,  an  action  of  trover  and  conversion  lies  against  him  by  the 
tenant  of  the  land  who  hath  such  fire-bote. 

Clayt.  40,  pi.  99,  coram  Barkley,  Anon. 

If  the  lessor  is  bound  in  a  bond  of  100?.,  and  the  lessee  cuts  tiventy 
oaks,  and  sells  them,  and  pays  the  obligee  for  his  lessor,  vet  waste  lies 

02 


438  OF  WASTE. 

(G)  Who  may  bring  an  Action  of  Waste. 

against  him  for  cutting  them  down,  though  the  money  was  applied  to  the 
use  and  profit  of  the  lessor. 

Dy.  36  b,  pi.  38,  Maleverer  v.  Spinke. 

If  A  hath  common  of  estovers  in  the  wood  of  B  for  house-bote,  and  he 
cuts  down  four  trees  for  that  purpose,  and  in  the  working  they  prove  unfit 
for  the  use,  as  for  posts  of  a  house,  &c,  A  cannot  convert  this  timber  to, 
any  other  use,  &c,  neither  can  he  sell  and  buy  other  fit  wood  with  the 
money ;  and  he  cannot  enlarge  the  house  with  this  timber,  nor  board  the 
sides  of  the  barn  there  which  had  mud  walls  or  the  like  before. 

Clayt.  47,  pi.  81,  coram  Barkley,  Earl  of  Pembroke's  case. 

Where  a  rent  is  granted  in  fee,  with  a  proviso  to  enter  and  retain  till 
satisfied  of  the  profits  ;  the  grantee,  upon  entry,  cannot  cut  trees,  or  do 
waste.     Per  three  justices. 
1  Lev.  171,  Jemmet  v.  Cooley. 

Cutting  dead  wood  is  no  waste. 
F.  N.  B.  59,  (M). 

If  a  man  leases  land  with  general  words  of  all  mines  of  coals,  where  there 

is  not  any  mine  of  coals  open  at  the  time  of  the  demise,  and  after  the  lessee 

opens  a  mine,  he  cannot  justify  the  cutting  of  timber  trees  for  the  making 

of  puncheons,  corses,  rolls,  roll-scoops,  and  other  uteiisils,  in  and  about  the 

said  mine,  though  without  them  he  could  not  dig  and  get  the  coals  out  of 

the  mine :  and  this  is  like  to  a  new  house  built  after  the  demise,  for  the 

reparation  of  which  he  cannot  take  timber  upon  the  land ;  and  it  had 

been  waste  to  open  it,  if  it  had  not  been  granted  by  express  words :  And 

it  was  said  by  Hobart,  that  the  law  had  been  the  same  if  the  mine  was 

open  at  the  time  of  the  demise. 

Hobart's  Rep.  C.  296,  Ld.  Darcey  v.  Ashwith  ;  and  see  Hutt.  19,  where  the  case  is 
more  clearly  reported. 

jSA  tenant  in  dower  may  clear  woodland  assigned  to  her  in  dower,  with- 
out being  guilty  of  waste,  if  she  does  not  exceed  the  relative  proportion 
of  cleared  land  considered  as  to  the  whole  tract. 

Hastings  v.  Crunckleton,  3  Yeates,  261. g( 

(G)  Who  may  bring  an  Action  of  Waste. 

By  13  Edw.  1,  c.  22,  the  action  of  waste  is  given  to  one  tenant  in  com- 
mon against  another. (a) 

13  Ed.  1,  c.  22.  (a)  These  words  include  as  well  joint-tenants  as  tenants  in  com- 
mon, for  both  of  them  hold  in  communi;  and  so  do  old  books  and  records  term  them 
both.  But  though  the  generality  of  these  words  do  extend  to  coparceners,  yet  in  good 
construction  they  are  not  within  the  purview  of  this  act,  because  they  were  compellable 
to  make  partition ;  for  this  act  extends  not  to  them  that  had  remedy  by  the  common 
law. 

{One  tenant  in  common  cannot  maintain  an  action  on  the  case  in  na- 
ture of  waste  against  another  tenant  in  common  in  possession  of  the  whole, 
having  a  demise  from  the  first  of  his  moiety,  for  cutting  down  trees  of  a 
proper  age  and  growth  for  being  cut. 

8  Term,  145,  Martyn  v.  Knowllys.  J 

Where  there  are  tenants  in  common  for  life,  the  one  shall  not  have 
trespass  of  trees  cut  against  the  other,  but  shall  have  waste  pro  indiviso, 
though  they  are  only  tenants  for  term  of  life,  &c. :  but  the  one  may  have 
trespass  of  corn  cut  against  the  other. 

Bro.  Waste,  pi.  79. 


OF  WASTE.  439 

(G)  Who  may  bring  an  Action  of  Waste. 

IJWhere  one  of  two  tenants  in  common  demised  to  the  other  his  moiety 
of  the  lands,  of  which  they  were  jointly  seised,  and  the  tenant  in  com- 
mon, lessee,  cut  down  timber  of  a  proper  age  and  growth  for  being  cut ; 
it  was  held  that  the  other  tenant  in  common  could  not  maintain  an  action 
for  waste  against  him,  since  the  tenant  cutting  the  timber  could  not  be 
in  a  worse  situation  than  if  the  plaintiff  had  not  demised  to  him.  In 
another  form  of  action  the  plaintiff  might  be  entitled  to  recover  a  moiety 
of  the  value  of  the  trees. 

Martin  v.  Knowlys,  8  Term  R.  145.  As  to  injunctions  for  waste  against  one  tenant 
in  common,  see  post,  (N).|| 

If  one  coparcener  before  partition  makes  feoffment  to  another,  and  one 
of  them  does  waste  in  the  trees,  waste  lies. 
11  Rep.  49  a,  Liford's  case. 

Likewise,  if  two  joint-tenants  do  waste,  and  after  the  one  enters  into 
religion,  waste  lies  against  the  other  alone. 
2  Roll.  Abr.  828. 

By  the  20  Ed.  1,  st.  2,  an  action  of  waste  is  maintainable  by  the  heir 
for  waste  done  in  the  time  of  his  ancestors,  as  well  as  for  the  waste  done 
in  his  own  time. 

13  E.  1,  st.  2.  It  is  questioned  if  this  is  not  an  ordinance  only.  See  Maynard's 
Ed.  2,  231,273,274. 

This  action  must  be  brought  by  him  that  hath  the  immediate  estate 
and  inheritance  in  fee-simple  or  fee-tail,  but  sometimes  another  may  join 
with  him. 

1  Inst.  53  b,  285  a. 

It  is  said,  that  the  reversion  must  continue  in  the  same  state  that  it 
was  at  the  time  of  the  waste  done,  and  not  granted  over ;  for  though  the 
reversioner  taketh  the  estate  back  again,  the  action  is  gone,  because  the 
estate  did  not  continue.  But  in  some  special  cases  an  action  of  waste 
shall  lie,  though  the  lessor  had  nothing  in  the  reversion  at  the  time  of 
the  waste  done ;  for  if  a  bishop  makes  a  lease  for  life  or  years,  and  dies, 
and  the  lessee,  the  see  being  void,  doth  waste,  the  successor  shall  have 
an  action  of  waste.  This  is  allowed  upon  a  particular  reason.  A  pur- 
chaser shall  have  an  action  of  waste,  though  the  statute  of  20  Ed.  1, 
speaks  of  those  that  are  inheritors. 

1  Inst.  53  b,  35G ;  2  Roll.  Abr.  825. 

A  tenant  for  life  cannot  have  this  action,  but  a  parson,  &c,  may  have 
an  action  of  waste,  and  the  writ  shall  say,  ad  cxlmrcdationcm  ecclesice, 
for  it  is  the  dowry  of  the  church.  If  a  tenant  doth  waste,  and  he  in  re- 
version dieth,  the  heir  shall  not  have  an  action  of  waste,  for  waste  done 
in  the  life  of  his  ancestor :  for  he  cannot  say  that  the  waste  was  done  to 
his  disinherison  ;  neither  shall  a  bishop,  master  of  an  hospital,  parson,  &c., 
have  an  action  of  waste  done  in  the  time  of  their  predecessors. 

1  Inst.  341  a ;  1  Inst.  53  b,  356  a. 

If  a  lease  is  made  to  A  for  life,  remainder  to  B  for  life,  remainder  to 
C  in  fee  ;  no  action  of  waste  lieth  against  the  first  lessee  during  the  estate 
in  the  mesne  remainder,(a)  for  then  his  estate  would  be  destroyed.     Other- 
wise, if  B  had  a  mesne  remainder  for  years,  for  that  would  be  no  impedi 
ment,  the  recovery  not  destroying  the  term  of  years. 

5  Rep.  67,  77  ;  1  Inst.  54.  (a)  [But  in  such  case  court  of  equity  would  interpose 
by  injunction  to  present  waste.  Perrot  v.  Perrot,  3  Atk.  94  ;  Robinson  v.  Litton,  Ibid. 
210;  Farrant  v.  Lovell,  Ibid.  723 ;]  (6  Yes.  J.  787,  Davies  v.  Leo.} 


440  OF  WASTE. 

(II)  Against  whom  the  Action  of  Waste  may  be  brought. 

If  lessee  for  years  committeth  waste,  and  the  years  expire,  yet  the  les- 
sor shall  have  an  action  of  waste  for  the  treble  damages,  though  he  can- 
not recover  the  place  wasted :  but,  if  the  lessor  accepteth  of  a  surrender 
of  a  lease  after  the  waste  done,  he  shall  not  have  his  action  of  waste. 
It  is  said,  that  if  a  tenant  repairs  before  action  brought,  he  in  reversion 
cannot  have  an  action  of  waste ;  but  he  cannot  plead  that  he  did  no  waste,  - 
therefore  he  must  plead  the  special  matter. 

1  lust.  285  a,  283  a ;  2  Inst.  306 ;  5  Rep.  119 ;  2  Cro.  658. 

Likewise,  by  11  H.  6,  c.  5,  where  tenants  for  life,  or  for  another's  life, 
or  for  years,  grant  over  their  estates,  and  take  the  profits  to  their  own 
use,  and  commit  waste,  they  in  reversion  may  have  an  action  of  waste 
against  them. 

And  so  it  is  of  mesne  assignees  ;  the  action  lies  against  him  that  takes  the  profits ; 
but  this  is  by  the  statute  of  11  II.  6,  c.  5.     For  in  that  case  the  pernor  of  the  profits 

did  not  hold  the  land.     2  Inst.  302. If  tenant  for  life  or  years  does  waste,  and 

grants  over  his  estate,  the  writ  lies  against  him  who  did  the  waste,  and  not  against 
the  grantee.  F.  N.  B.  50,  (A).  But  if  the  waste  be  done  after  the  alienation  made, 
then  it  lies  against  the  tenant.     F.  N.  B.  60,  (L) ;  but  says,  tamen  qucere. 

He  in  the  remainder  as  well  as  the  reversion  may  bring  this  action,  and 
every  assignee  of  the  first  lessee,  mediate  or  immediate,  is  within  this  act. 
5  Rep.  77,  Paget's  case ;  2  Inst.  302. 

£A  remainder-man  for  life  only  cannot  sue  for  waste  ;  the  plaintiff  must 
be  entitled  to  the  inheritance ;  a  contingent  interest  is  not  sufficient. 
Mayo  v.  Feaster,  2  M'Cord,  Ch.  142. 

A  mortgagee  of  a  reversion  of  an  estate  in  dower,  who  enters  after 
condition  broken,  may  maintain  an  action  against  the  tenant  for  life,  for 
waste  committed  before  his  entry. 

Fay  v.  Brewer,  3  Pick.  203. 

A  reversioner  may  sue  a  stranger  for  waste  done  to  the  reversionary 
estate,  while  in  the  possession  of  the  tenant. 
Randall  v.  Cleaveland,  6  Conn.  328. 

An  action  on  the  case  in  the  nature  of  waste  can  be  brought  only  by  a 
reversioner,  or  remainder-man  in  fee-simple,  for  tail,  for  life,  or  for  years. 
M'Laughlin  v.  Long,  5  liar.  &  J.  113. £/ 

(II)  Against  whom  the  Action  of  Waste  may  be  brought. 

It  has  been  said,  that  there  are  five  writs  of  waste,  two  at  the  common 
law,  as  for  waste  done  by  tenant  in  dower,  or  by  guardian  ;  three  by  sta- 
tute, as  against  tenant  for  life,  tenant  for  years,  and  tenant  by  the  curtesy. 
It  has  been  said,  however,  that  tenant  by  the  curtesy  was  punishable 
for  waste  by  the  common  law,  for  that  the  law  created  his  estate  as  well 
as  that  of  the  tenant  in  dower,  and  therefore  the  law  gives  like  remedy 
against  them. 

1  Inst.  54  a ;  2  Inst.  145,  299,  301,  305. 

But  on  this  subject  the  authorities  in  the  books  are  very  contradictory, 
as  the  reader  will  perceive  by  attending  to  the  note  subjoined  to  the  fol- 
ing  clause  of — 

The  statute  of  Gloucester,  6  E,  1,  cap.  5,  which  enacts  that  a  man 
from  henceforth  shall  have  a  ivrit  of  ivasteia)  in  the  Chancery  against 
him(b)  that  holds  by  law  oj  En  gland,  (c) 

No  action  of  waste  lug  before  the  statute  of  Gloucester,  but  against  tenant  in  dower  and 


OF   WASTE.  441 

(H)  Against  whom  the  Action  of  Waste  may  be  brought. 

guardian,  and  by  the  statute,  action  of  waste  is  given  against  tenant  by  the  curtesy  for 

term  of  life,  and  tenant  for  term  of  years.     Bro.  Waste,  pi.  68. Lord  Coke  Bays,  a 

reason  is  required,  (that  seeing  as  well  the  estate  of  the  tenant  by  the  curtesy,  as  the 
tenant  in  dower,  are  created  by  act  in  law,)  wherefore  the  prohibition  of  waste  did  not 
lie  as  well  against  the  tenant  by  curtesy  as  the  tenant  in  dower  at  the  common  law  ; 
and  the  reason  he  assigns  is  this,  for  that  by  having  issue  the  state  of  the  tenant  by  the 
curtesy  is  originally  created,  and  yet  after  that  he  shall  do  homage  alone  in  the  life  of 
his  wife,  which  proves  a  larger  estate  ;  and  seeing  that  at  the  creation  of  his  estate  he 
might  do  waste,  the  prohibition  of  waste  lay  not  against  him  after  his  wife's  decease  ; 
but  in  the  case  of  tenant  in  dower,  she  is  punishable  of  waste  at  the  first  creation  of 

her  estate.    2  Inst.  145. But  2  Inst.  299,  says,  that  at  the  common  law  waste  was 

punishable  in  three  persons,  (viz.,)  tenant  in  dower,  tenant  by  the  curtesy,  and  the 
guardian,  but  not  against  tenant  for  life,  or  tenant  for  years  ;  and  the  reason  of  the 
diversity  was,  for  that  the  law  created  their  estates  and  interest ;  and  therefore  the 
law  gave  remedy  against  them,  but  tenant  for  life  and  for  years  came  in  by  demise 
and  lease  of  the  owner  of  the  land,  &c,  and  therefore  he  might  in  his  demise  provide 
against  the  doin°;  of  waste  by  his  lessee  ;  and  if  he  did  not,  it  was  his  negligence  and 

default. (a)  Neither  this  act,  nor  the  statute  of  Marlebridge,  doth  create  new  hind 

of  wastes,  but  gives  new  remedies  for  old  wastes  ;  and  what  is  waste,  and  what  not, 
must  be  determined  by  the  common  law.  2  Inst.  300,  301.  j3  The  statute  of  Gloucester, 
6  Ed.  1,  c.  5,  is  in  force  in  Massachusetts  so  far  as  to  give  an  action  against  the  tenant 
for  life  for  the  recovery  of  the  place  wasted,  and  treble  damages  ;  except  in  respect  to 
tenants  in  dower,  respecting  which  the  law  has  been  altered  by  statute.    Sackett  v. 

Sackett,  8  Pick.  309. £f (6)  If  two  are  joint-tenants  for  years  or  for  life,  and  one  of 

them  does  waste,  this  is  the  waste  of  them  both  as  to  the  place  wasted,  notwithstand- 
ing the  words  of  the  act  are  (him  that  holds).  2  Inst.  302. (c)  Here  tenant  by  the 

curtesy  is  named  for  two  causes.  1st,  For  that  albeit  the  common  opinion  was  that 
an  action  of  waste  did  lie  against  him,  yet  some  doubted  of  the  same  in  respect  of  this 
word  (tenet)  in  the  writ,  for  that  the  tenant  by  the  curtesy  did  not  hold  of  the  heir, 
but  of  the  lord  paramount ;  and  after  this  act,  the  writ  of  waste  grounded  thei-eupon 
(loth  recite  this  statute.  2dly,  For  that  greater  penalties  were  inflicted  by  this  act 
than  were  at  the  common  law.    2  Inst.  301. 

Or  (a)  otherivise  for  term  of  life,  or  for  term  of  years,  or  a  woman  (b) 
in  doiver. 

(a)  A  lessee  for  his  own  life,  or  for  another  man's  life,  is  within  the  words  and 
meaning  of  this  law,  and  in  this  point  this  act  introduces  that  which  was  not  at  the 
common  law.  2  Inst.  501.  [In  this  point,  with  deference  to  the  high  authority  of  Lord 
Coke,  the  act  does  not  introduce  that  which  was  not  at  the  common  law  ;  for  tenant  for 
life  was  punishable  for  waste  at  common  law,  as  may  be  seen  in  Bracton,  lib.  4,  c. 

18.] If  feme  lessee  for  life  takes  husband,  the  husband  does  waste,  the  wife  dies,  the 

husband  shall  not  be  punished  by  this  law;  for  the  words  of  this  act  be,  (a  man  that 
holds,  &c,  for  life,)  and  the  husband  held  not  for  life ;  for  he  was  seised  but  in  right 

of  his  wife,  and  the  estate  was  in  his  wife.    2  Inst.  301. He  that  hath  an  estate  for 

life  by  conveyance  at  common  law,  or  by  limitation  of  'use,  is  a  tenant  within  the  statute. 

2  Inst.  302. Tenants  for  years  of  a  moiety,  3d  or  4th  part,  pro  indiviso,  are  within 

this  act ;  and  so  it  is  of  a  tenant  by  the  curtesy,  or  other  tenant  for  life  of  a  moiety,  &e. 

2  Inst.  302. (b)  This  is  to  be  understood  of  all  the  five  kinds  of  dowers  whereof 

Littleton  speaks,  viz.,  dower  at  common  law,  dower  by  the  custom,  dower  ad  ostium 
ecclcsio?,  dower  ex  assensu  patris,  and  dower  de  la  pluis  beale;  and  against  all  these 

the  action  of  waste  did  lie  at  the  common  law.    2  Inst.  303. If  tenant  in  doiver  be 

of  a  manor,  and  a  copyholder  thereof  commits  waste,  an  action  of  waste  lies  against 
tenant  in  dower.    2  Inst.  303. 

Action  of  waste  lies  against  an  occupant  for  life,  because  he  has  the 
estate  of  the  lessee  for  life,  and  holds  for  life,  as  the  statute  mentions. 
6  Rep.  37  b,  Dean  and  Chapter  of  Worcester. 

If  lessee  for  life  be  attainted  of  treason,  by  which  the  lease  is  forfeited 
to  the  king,  who  grants  it  over  to  J  S,  and  he  afterwards  do  ivaste,  though 
he  come  in  en  le  post,  yet  action  of  waste  lies  against  him. 

2  Roll.  Abr.  826. 

So,  if  a  man  disseise  the  tenant  for  life,  and  do  ivaste,  yet  action  of 

Vol.  X.— 56 


442  OF    WASTE. 

(II)  Against  whom  the  Action  of  Waste  may  be  brought. 

waste  lies  against  the  tenant  for  term  of  life;  for  he  may  have  his  remedy 
over  against  the  disseisor. 

Bro.  Waste,  pi.  138. 

^Neither  a  devisee  of  an  estate-tail,  nor  of  a  contingent  fee  with  an 
executory  devise  over,  has  any  power  to  waste  or  destroy  the  inheritance. 

Wellington  v.  Taylor,  Sax.  Ch.  R.  314.£f 

Likewise,  if  an  estate  be  made  to  A  and  his  heirs,  during  the  life  of 
B,  A  die,  the  heir  of  A  shall  be  punished  in  an  action  of  waste. 

1  Inst.  54  a,  (s). 

But  an  action  of  waste  does  not  lie  against  tenant  by  statute  merchant, 
elegit,  or  staple,  because  it  is  not  an  estate  for  life  or  years,  and  the  statute 
mentions  those  who  hold  in  any  manner  for  life  or  years.  Contra  Fitzh. 
Na.  58,  EL,  and  there  said,  that  in  the  register  is  a  writ  against  him. 

6  Rep.  37,  Dean  and  Chapter  of  Worcester ;  F.  N.  B.  58,  (II),  and  in  the  new 
notes  there  (a)  cites  21  E.  3,  26,  that  a  scire  facias  was  brought  against  a  tenant  by 
elegit,  who  had  cut  trees  to  pay  the  residue  of  the  money  to  answer  for  the  trees  cut,  and 
for  the  plaintiff  to  have  his  land  again;  per  curiam.  By  the  statute  against  cutting 
trees,  this  is  in  the  nature  of  a  trespass,  and  lies  not  in  account,  nor  is  he  punishable 
in  waste,  but  in  an  action  on  the  case. — Waste  lies  not  against  tenant  by  elegit,  but 
writ  of  account.     Bro.  Waste,  pi.  78. 

Some  books  give  the  reason  of  it  to  be,  because  the  conusor,  if  he  com- 
mits waste,  may  have  a  venire  facias  ad  computandum,  and  the  waste 
shall  be  recovered  in  the  debt. 

Fitz.  Na.  58  b,  (II).  If  such  tenant  cuts  timber  it  sinks  the  debt,  and  the  conusor 
may  have  scire  facias  ad  computandum,  3  Mod.  93,  Arg.  in  the  case  of  the  mayor  and 
commonalty  of  Norwich  v.  Johnson. 

If  a  man  makes  a  lease  for  years,  and  pats  out  the  lessee,  and  makes  a 
lease  for  life,  and  the  lessee  for  years  enters  upon  the  lessee  for  life,  and 
does  waste,  the  lessee  for  life  shall  not  be  punished  for  it. 

2  Inst.  303. 

If  lessee  for  years  makes  a  lease  of  one  moiety  to  A,  and  of  the  other 
moiety  to  B,  and  A  does  waste  ;  the  action  shall  be  against  both ;  for  the 
waste  of  the  one  is  the  waste  of  the  other. 

Brownl.  238,  Anon. 

An  action  of  waste  lies  against  a  devisee,  and  the  writ  may  suppose  it 
ex  legatione  ;  for  it  is  within  the  equity  of  the  statute. 

Bro.  Waste,  pi.  132. 

No  action  of  waste  lies  against  guardian  in  socage,  but  an  account  or 

trespass. 

1  Inst.  54,  S.  P.  contra  F.  N.  B.  59,  (E),  and  2  Inst,  135,  says,  the  heir  within  age 
shall  have  an  action  of  waste  against  the  guardian  in  socage. — But  F.  N.  B.  59  (E), 
in  the  new  notes  there,  (<7)  it  is  said,  that  the  heir  in  this  case  shall  have  account  or 
trespass,  but  not  waste. — And  Ibid.  (A),  in  the  new  notes  there  (d).  Note,  waste 
does  not  lie  against  the  guardian  in  socage,  but  only  account  or  trespass,  according  to 

the  nature  of  the  waste,  and  says  it  was  adjudged  16  E.  3. If  guardian  in  socage  in 

right  of  his  wife  does  waste,  the  writ  shall  be  against  the  husband  only.    Brownl.  239. 

If  an  estate  of  lands  be  made  to  baron  and  feme,  to  hold  to  them  during 
the  coverture,  &c,  if  they  waste,  the  feoffor  shall  have  writ  of  waste 
against  them. 

Litt.  sect,  381. 

If  feme  lessee  for  life  marries,  and  the  husband  does  waste,  action  lies 
against  both. 

2  Roll.  Abr.  827. 


OF   WASTE.  443 

(H)  Against  whom  the  Action  of  Waste  may  be  brought. 

And,  if  in  the  above  case,  the  husband  dies,  action  of  waste  lies  against 
the  ferae  for  the  waste  he  committed. 
2  Roll.  Abr.  827 

But  if  tenant  in  dower  marries,  and  the  husband  does  waste  and  dies, 
the  feme  shall  not  be  punished  for  this. 

2  Roll.  Abr.  827. 

Likewise,  if  baron  and  feme  are  lessees  for  life,  and  baron  does  ivaste, 

and  dies,  the  feme  shall  be  punished  in  waste,  if  she  agrees  to  the  estate. 

2  Roll.  Abr.  827 ;  1  Inst.  54  ;  Kelw.  113,  pi.  42.— Though  there  have  been  variety 
of  opinions  in  our  books.  She  shall  be  punished  by  the  waste  done  by  her  husband 
in  like  manner  as  if  a  stranger  had  done  it ;  and  after  the  death  of  her  husband  she  is 

in  from  the  lessor.    2  Inst.  303. The  feme  shall  not  be  punished  for  this  waste  ; 

per  Ilanke.  Bro.  Waste,  pi.  58  ;  Bro.  Waste,  pi.  138,  says,  that  waste  does  not  lie 
against  the  feme.  But  says,  quaire,  If  this  be  not  the  waste  of  both  ;  and  says,  so  see 
where  there  is  folly  in  the  feme,  and  where  not.  [Quaere,  If  this  does  not  mean  by 
her  agreeing  to  the  estate  after  the  baron's  death.] 

But  if  she  waives  the  estate,  she  shall  not  be  charged. 
2  Roll.  Abr.  827. 

So,  upon  lease  for  years  made  to  the  baron  and  feme,  waste  lies  against 
both. 

2  Roll.  Abr.  827. 

And,  if  baron  and  feme  are  joint  lessees  for  years,  and  baron  does 
ivastc,  and  dies,  action  of  waste  lies  for  this  against  the  feme. 
2  Roll.  Abr.  827. 

Upon  lease  for  life  to  baron  and  feme,  waste  lies  against  both. 
Roll.  Abr.  827. 

Likewise,  iifefne  commits  waste  and  then  marries,  the  action  shall  be 

brought  against  both. 

2  Roll.  Abr.  827.  And  the  writ  may  be  quod  fecerunt  vastum,  or  quod  uxor,  dum 
sola  fait,  fecit  vastum.    Bro.  Waste,  pi.  55. 

If  baron,  seised  for  life  of  his  wife  in  right  of  his  wife,  does  waste, 

and  after  the  feme  dies,  no  action  of  waste  lies  against  the  baron  in  the 

tenuit,  because  he  was  seised  only  in  right  of  his  wife,  and  the  franktene- 

ment  was  in  the  feme. 

1  Inst.  54  ;  5  Rep.  75  b,  resolved  per  tot.  cur.,  Clifton's  case,  that  the  writ  does  not 
lie  ;  and  the  reporter  says,  Nota  reader,  This  judgment  given  upon  consideration  of 
the  statute  of  Gloucester,  and  of  opinions  obiter  in  10  II.  G,  11  &  12,  by  Strange  and 
Cottesmore ;  S.  C.  cited  by  Treby,  C.  J.,  Lutw.  674,  Baron  v.  Barkley  ;  and  said  the 
reason  is,  because  it  cannot  be  said  that  the  baron  tenuit  ex  dimissione,  according  to 
the  words  of  the  statute. 

But  if  baron,  possessed  for  years  in  right  of  the  feme,  does  waste,  and 
after  the  feme  dies,  action  of  waste  lies  against  the  baron,  because  the 
law  gives  the  term  to  him. 

1  Inst.  54. 

A  made  a  feoffment  in  fee  to  the  use  of  himself  and  his  wife,  and  to 
his  heirs  ;  there  were  underwoods  on  the  lands,  which  were  usually  cut 
at  twenty-one  years'  growth  ;  A  suffered  them  to  groiv  twenty-jive  years, 
and  then  died.  Per  tot.  cur. — This  shall  bind  the  wife  ;  for  where  the 
law  limits  a  time  for  tenant  for  life  to  fell  underwood,  if  it  be  not  felled 
in  that  time,  it  shall  not  be  felled  by  a  tenant  for  life  afterwards,  but  it 
shall  be  waste. 

Godb.  4,  5,  pi.  G,  Anon. 


444  OF   WASTE. 

(II)  Against  whom  the  Action  of  Waste  may  be  brought. 

Lessee  for  years  of  lands  bought  trees,  ivith  liberty  to  cut  them  doiun 
within  eighty  years :  afterwards  the  lessee  bought  the  inheritance,  and 
devised  to  his  wife  for  life,  remainder  to  the  plaintiff  in  fee,  and  made  his 
wife  executrix,  and  died  :  she  cut  down  the  trees :  adjudged,  that  an  action 
was  maintainable ;  for  though  the  trees  were  once  chattels  in  the  lessee, 
yet  by  purchasing  the  inheritance  they  are  again  united  to  the  land. 

Ow.  49,  Anon. 

If  the  king  commits  the  wardship  of  the  heir  in  ward  unto  another,  and 
the  committee  does  waste,  then,  upon  a  surmise  made  thereof  in  Chancery, 
the  king  shall  send  a  writ  unto  the  escheator  to  go  to  the  land  and  see 
if  waste  be  done,  and  to  certify  the  king  thereof  in  the  Chancery. 

F.  N.  B.  50,  (B). 

If '  escheators  commit  waste  in  lands  which  they  have  in  their  hands  in 
custody,  the  heir  within  age,  or  of  full  age,  shall  have  an  action  of  waste, 
.and  -shall  recover  treble  damages  against  them,  and  they  shall  suffer  im- 
prisonment two  years  at  the  least,  at  the  king's  pleasure.  And  so  if 
'escheators  commit  waste  in  other  lands,  seised  into  the  king's  hands  by 
.inquest  of  office. 
J?.  N.  B.  59,  (B). 

And  escheators,  or  other  guardians  of  lands,  in  the  vacation  of  the  tem- 
poralities of  bishoprics,  shall  do  no  waste,  &c. 

F.  N.  B.  59,  (B).  ' 

Pending  a  quare  impedit,  if  the  incumbent  cuts  trees  upon  the  glebe, 
:and  upon  the  lands  of  copyholders  of  a  manor,  parcel  of  the  rectory,  a 
•prohibition  lies. 

Hob.  30,  pi.  51,  Drury  v.  Kent. 

A  prohibition  is  awardable  against  any  one  who  wastes  the  houses  of 
dhe  parson  incumbent,  or  cuts  the  trees,  or  does  any  waste.  Agreed  by 
.all  the  justices. 

Mod.  917,  pi.  1303,  Saccar's  case.  The  prohibition  of  waste  was  abrogated,  and  the 
.action  of  waste  framed  upon  the  act  of  Westm.  2,  (c.  14,)  as  in  the  register  appears. 
:2  Inst.  140. 

If  tenant  by  the  curtesy,  or  other  tenant  for  life,  make  a  lease  for 
years,  and  he  in  the  reversion  confirm  it,  and  tenant  by  the  curtesy  die, 
an  action  of  waste  lies  against  the  lessee. 

2  Inst.  302. 

But  if  tenant  by  the  curtesy  grant  over  his  estate,  and  the  grantee 
commit  waste,  the  action  of  waste  ought  to  be  brought  against  the  tenant 
by  the  curtesy  by  the  heir,  and  thereby  he  shall  recover  the  land  against 
the  assignee,  for  the  privity,  which  is  between  the  heir  and  the  tenant 
by  the  curtesy. 

1  Inst.  54  ;  Le.  291,  pi.  397,  S.  P. ;  2  Inst.  301. 

So,  if  tenant  in  dower  grant  over  her  estate,  and  after  the  grantee 
commit  waste,  yet  an  action  of  waste  lies  againt  the  tenant  in  dower,  for 
the  privity  between  them. 

2  Roll.  Abr.  828  ;  2  Inst,  301.— S.  P.  3  Rep.  23  b,  in  Walker's  case.  The  reason 
wherefore,  at  the  common  law,  the  action  of  waste  did  lie  against  the  tenant  in  dower, 
or  tenant  by  the  curtesy,  albeit  they  had  assigned  over  their  estates,  was,  because  no 
action  of  waste,  by  the  common  law,  lay  against  (lie  assignee  for  icaste  done  after  the  as- 
signment; therefore  the  action  of  necessity  did.  for  such  waste,  (after  the  assignment.) 
lie  against  the  tenant  by  the  curtesy,  or  tenant  in  dower.    2  Inst.  300. And  it  lies 


OF    WASTE.  445 

(II)  Against  whom  the  Action  of  Waste  may  be  brought. 

against  her,  and  not  against  the  grantee,  for  the  grantee  cannot  be  tenant  in  dower ; 
and  confirmation  by  the  heir  to  the  tenant  in  dower  is  no  bar  in  this  action ;  because  it 

shall  not  change  her  estate.     Bro.  Waste,  pi.  76. Where  the  husband  levied  afnc, 

and  took  back  an  estate  for  life,  remainder  to  his  son  in  tail,  and  died;  and  the  son  en- 
dowed the  mother,  who  assigned  over  the  estate  ;  it  was  nevertheless  adjudged,  that  waste 
lay  against  her  as  tenant  in  dower.     F.  N.  B.  55,  (E),  in  the  new  notes  there  («). 

But  if  tenant  by  the  curtesy,  or  tenant  in  dower,  grant  over  their 
estate,  and  grantee  do  waste,  and  the  heir,  either  before  or  after  the  as- 
signment, grant  the  reversion  over,  the  stranger  shall  have  action  of 
waste  against  the  assignee,  because  the  privity  is  destroyed. 

1  Inst.  54.— S.  P.  3  Rep.  23  b,  in  Walker's  case.— F.  N.  B.  56,  (E),  S.  P.  For  one 
cannot  hold  by  the  curtesy,  but  of  the  heir,  &c. — He  can  hold  of  none  but  the  heir, 
and  his  heir  by  descent.  1  Inst,  316  a. — But  if  feoffee  of  the  baron  endow  the  feme, 
and  she  assign  over  the  estate,  waste  lies  for  him  against  the  wife ;  for  the  plaintiff 
shall  not  suppose  in  his  writ,  that  she  held  in  dower  of  him  ex  assignations,  but  only 
that  she  held  in  dower  of  his  heritage.     F.  N.  B,  56,  (E),  in  the  new  notes  there  (a). 

If  lessee  for  life  grant  over  his  estate  upon  condition,  and  after  the 
grantee  commit  waste,  and  grantor  enter  for  the  condition  broken,  he 
cannot  be  charged  for  the  waste  committed  by  the  grantee. 

1  Inst.  54.  The  action  shall  be  brought  against  the  grantee.  And  so  it  is  in  case  of 
tenant  for  years.   2  Inst.  302. — And  the  place  wasted  shall  be  recovered.  1  Inst.  54a. 

So,  if  lessee  for  life  make  feoffment  upon  condition,  and  the  feoffee  com- 
mit waste,  and  after  the  lessee  re-enter  for  the  condition  broken,  an  action 
of  waste  does  not  lie  against  him  for  the  waste  committed  by  the  feoffee. 

2  Roll.  Abr.  828  ;  contrd,  39  Ass.  15,  by  Tank. 

If  tenant  for  life  ivithout  impeachment  of  waste  lease  for  years,  or  other- 
wise, and  lessee  for  years  commit  waste,  he  in  remainder  in  fee  shall  not 
have  an  action  of  waste ;  for  this  lease  was  derived  out  of  the  privileged 
estate  for  life ;  and  if  waste  lay,  it  should  be  brought  against  the  tenant 
for  life,  who  made  the  lease,  and  he  was  dispunishable. 

Sir  W.  Jo.  51,  pi.  2,  Bray  v.  Tracy. 

If  there  be  lessee  for  life,  remainder  in  tail,  remainder  infeeto  the  lessee, 
and  he  do  waste,  he  in  remainder  in  tail  shall  have  an  action  of  waste. 
2  Roll.  Abr.  828. 

If  lessee  for  life  and  for  years  commit  waste,  and  die,  his  executor 
shall  not  be  charged  for  it. 

2  Roll.  Abr.  828,  contra,  46  E.  3,  31  b,  admitted ;  Bro.  Waste,  pi.  48.  0  A  tenant 
for  life  is  liable  for  waste  committed  by  a  trespasser.  Fay  v.  Brewer,  3  Pick.  203  ; 
White  v.  Wagner,  4  Har.  &  J.,  373.0 

But  a  condition  in  a  lease  not  to  do  waste,  extends  to  the  assignee,  without 
naming  him,  and  that  as  inherent  to  the  land. 
Clayt.  Rep.  126,  127,  pi.  125,  Ward  v.  Waddington. 

If  lessee  for  100  years  grant  part  of  his  term  to  another,  and  he  commit 
waste,  the  action  shall  be  brought  against  the  first  lessee. 

Brownl.  238,  Anon.  j3  An  action  on  the  case,  in  the  nature  of  waste,  lies  against 
the  assignees  of  a  lessee.    Short  v.  Wilson,  13  Johns.  33.0 

Lessee  for  years  made  a  lease  of  one  moiety  to  A,  and  of  the  other  moiety 
to  B. — A  does  waste — the  action  shall  be  against  both ;  for  the  waste  of 
the  one  is  the  waste  of  the  other. 

Brownl.  238,  Anon. 

B,  lessee  for  yearsr  the  reversion  to  A  in  fee :  B  assigned  all  his  term  and 

2P 


446  OF   WASTE. 

(II)  Against  whom  the  Action  of  Waste  may  be  brought. 

interest  to  J  S,  reserving  all  trees  growing  and  being  on  the  lands,  and 
afterwards  he  committed  waste  in  cutting  down  the  trees ;  A  brought  an 
action  against  J  S,  and  it  was  disputed  whether  the  action  would  lie.  It 
seemed  agreed,  that  if  the  reservation  was  good,  then  the  action  would  lie 
against  the  assignee ;  but  to  prove  it  void,  it  was  insisted,  that  what  a  man 
cannot  grant  he  cannot  reserve ;  so  that  because  the  lessee  cannot  grant  the 
trees  he  cannot  reserve  them.  As  to  the  point  of  law  the  court  was  divided. 
Goldsb.  03,  pi.  23,  Foster's  case.  If  tenant  for  years  or  for  life  assigns  over  his 
lease  for  years,  or  estate  for  life,  excepting  the  timber  trees,  and  after  waste  is  done 
in  felling  down  the  trees,  the  action  of  waste  is  maintainable  against  the  assignee,  for 
as  to  the  lessor  they  are  not  severed  from  the  land.     2  Inst.  302. 

But  the  action  of  waste  does  not  lie  against  tenant  at  will. 

Bro.  Waste,  pi.  52,  who  says,  that  case  lies,  but  not  waste. — If  tenant  at  toill  to  him 
and  his  heirs,  according  to  the  custom,  or  another  tenant  at  will  cuts  trees,  action  of 
waste  does  not  lie,  but  trespass.  Per  Ascough,  J.,  which  was  not  denied  by  the  other 
justices,  but  it  is  not  expressed  whether  he  shall  have  trespass  vi  et  armis.  Bro. 
Trespass,  pi.  147. — Tenant  at  will  cut  down  trees,  lessor  brought  trespass  vi  et  armis 
against  him,  and  held  good,  and  judgment  accordingly.  4  Le.  107,  pi.  271,  Walgrave 
v.  Somerset. — Because  otherwise  he  shall  have  no  action,  for  waste  is  not  maintain- 
able ;  1  Inst.  57  a.  It  lies  not  against  tenant  at  will  for  permissive  waste,  either  by 
common  laio  or  by  statute.  Arg.  Show.  315,  Cunlip  v.  Rundle.  {An  action  on  the 
case  does  not  lie  against  him  for  permissive  waste.  4  Bos.  &  Pul.  290,  Gibson  v.  Wells.} 
||  See  Gibson  v.  Wells,  1  New  II.  290  ;  Harne  v.  Benbow,  4  Taunt.  764;  Jones  v.  Hill, 
7  Taunt.  392;  sed  vide  2  Saund.  252,  n.  7,  contrd. || 

Nor,  according  to  some,  against  lessee  for  a  year, {a)  though  the  statute 
mentions  years. 

2  Roll.  Abr.  828,  contra,  48  E.  3,  25.  It  lies  against  lessee  for  a  year,  and  so  from 
year  to  year.  Bro.  Waste,  pi.  52.  [a)  S.  P.,  or  for  half  a  year.  2  Inst.  302.  And  so 
though  he  holds  only  for  twenty  weeks.     Plow.  C.  467. 

||  An  action  on  the  case,  in  nature  of  waste,  lies  against  the  tenant  for 
acts  done  after  the  expiration  of  a  notice  to  quit. 
Burchell  v.  Hornsby,  1  Camp.  360. 

J3  A  mortgagee  in  possession  may  be  charged  with,  and  made  to  account 
for  waste. 

Ilawlings  v.  Stewart,  1  Bland,  22.0 

1.  Against  whom  it  may  be  brought  for  Waste  done  by  a  Stranger. 

If  a  stranger  commits  waste,  yet  an  action  of  waste  lies  against  the 
lessee,  for  in  a  trespass  he  shall  recover  his  damages  against  the  stranger. 

49  E.  3,  26  b.  The  statute  of  Marlebridge  prohibits  farmers  doing  waste,  and  yet 
if  they  sutfer  a  stranger  to  do  waste,  they  shall  be  charged  with  it ;  for  it  is  presumed 
in  law,  that  the  fanner  may  withstand  it,  et  qui  non  obsfat  quod  obstare  potest,  face-re  ' 
videtur.  ||  Attersoll  v.  Stevens,  1  Taunt.  196.  ||  2dly,  The  law  does  give  to  every  man 
his  proper  action,  so  as  none  be  without  due  remedy  ;  and  therefore,  in  this  case,  the 
lessor  shall  have  his  action  of  waste  against  the  lessee,  and  the  lessee  his  action  of 
trespass  against  him  that  did  the  waste  ;  and  so  the  loss,  as  reason  requires,  in  the 
end  shall  be  upon  the  wrong-doer ;  and  if  the  lessor  should  not  have  this  action  of 
waste,  he  should  be  without  remedy.     2  Inst.  145,  146. 

So,  if  a  stranger  disseises  lessee  and  commits  waste,  waste  lies  against 
lessee  for  this,  for  he  shall  have  his  remedy  against  the  stranger. 

44  E.  3,  27  b.  And  the  lessor  cannot,  in  such  case,  have  trespass  against  the  dis- 
seisor.    Bro.  Waste,  pi.  37,  cites  S.  C. 

If  a  man,  who  has  common  of  estovers  of  land  in  lease,  does  waste  in 
cutting  such  wood  as  he  ought  not,  action  of  waste  lies  against  lessee  for  it; 


OF   WASTE.  447 

(II)  Against  'whom  the  Action  of  Waste  may  be  brought. 

for  it  seems  he  may  have  trespass  against  commoner,  for  he  is  as  a  mere 
stranger  for  this. 
46  E.  3,  27  b. 

A  guardian  shall  not  be  punished  in  waste  for  waste  done  by  a  stranger. 
F.  N.  B.  60. 

If  lessee  for  life  leases  for  years,  and  lessee  for  years  does  waste,  waste 
lies  against  lessee  for  life. 
49  E.  3,  26  b. 

Tenant  by  the  curtesy  and  tenant  in  dower  shall  be  punished  for  waste 
done  by  a  stranger. 

1  Inst.  54  a.  For  he  in  the  reversion  cannot  have  any  remedy  but  against  the 
tenant,  and  the  tenant  shall  have  his  remedy  but  against  the  wrong-doer,  and  recover 
all  in  damages  against  him ;  for  voluntary  waste  and  permissive  waste  is  all  one  to 
him  that  hath  the  inheritance.  But,  if  the  waste  be  done  by  the  enemies  of  the  king, 
the  tenant  shall  not  answer  for  the  waste  done  by  them,  for  the  tenant  has  no  remedy 
over  against  them.     2  Inst.  303. 

If  two  are  joint-tenants  of  a  ward,  and  the  one  does  waste,  both  shall 
be  punished  in  an  action  of  waste. 

1  Inst.  54  a;  2  Inst.  305,  cites  3  E.  3,  18.  So  of  waste  done  by  one,  both  shall  be 
attainted  for  it.    See  2  Inst.  303. 

I]  If  there  are  two  joint-tenants  for  life  or  years,  and  one  of  them  com- 
mits waste,  this  is  deemed  waste  by  both  as  to  the  place  wasted ;  but 
treble  damages  shall  be  recovered  only  against  the  person  who  actually 
committed  the  waste. 

2  Inst.  302,  Cru.  Dig.  tit.  xviii.  c.  1,  §  63 ;  Co.  Lit.  54  a.|| 

An  infant  shall  be  punished  in  an  action  of  waste  for  waste  done  by 
a  stranger. 
1  Inst.  54  a. 

Baron  and  feme  shall  likewise  be  punished  in  waste  for  waste  done  by 

a  stranger. 

1  Inst.  54  a.  If  an  infant  is  tenant  by  the  curtesy  or  lessee  for  life  or  years,  he 
shall  answer  for  the  waste  done  by  a  stranger,  and  have  his  remedy  over  ;  though  some 
have  holden  the  contrary.  And  so  it  is  in  case  of  a  feme  covert ;  for  the  privilege  of 
coverture  and  infancy,  in  this  case,  shall  not  prevail  against  the  wrong  and  disherison 
done  to  him  that  has  the  inheritance,  especially  when  they  have  their  remedy  over, 
and  the  estate  is  of  their  own  purchase  or  taking.     2  Inst.  303. 

If  baron,  possessed  of  a  lease  for  years  in  right  of  his  feme,  commits 
waste,  and  after  the  feme  dies,  action  of  waste  lies  against  the  baron, 
because  the  law  gives  the  term  to  the  baron. 

1  Inst.  54  a. 

If  thieves  burn  the  house  of  tenant  for  life  without  any  default  of 
lessee  for  life  in  keeping  his  fire,  the  lessee  shall  not  be  punished  for  it 
in  an  action  of  waste. 

2  Inst.  303,  cites  as  adjudged  in  9  E.  3. 

A  termor  shall  be  punished  for  waste  done  by  a  stranger. 
F.  N.  B.  60,  (G) ;  ||  1  Taunt.  196,  201.|| 

2.  How  far  it  lies  against  Executors,  dx. 

Waste  lies  against  one  executor  alone,  without  naming  his  companion, 
if  the  waste  was  done  by  him  alone. 
2  Inst.  302. 

If  termor  does  waste,  and  makes  executors  and  dies,  the  action  of 


448  OF   WASTE. 

(I)  At  what  Time  an  Action  of  Waste  may  be  brought. 

■waste  is  lost,  for  it  docs  not  lie  against  the  executors,  but  for  waste  done 
by  themselves,  and  not  for  the  waste  of  the  testator ;  for  it  is  as  a  tres- 
pass, which  is  an  action  personal,  which  dies  with  the  person. 

Bro.  Waste,  pi.  138  ;  S.  P.,  2  Inst.  302.  It  is  the  same  in  case  of  administrators. 
"Went.  Off.  of  Exec.  127.  But  Brownl.  239,  says,  that  an  action  of  waste  lies  against 
executors  for  waste  done  by  testator. 

Executor  de  son  tort  of  a  term  is  chargeable  in  waste. 

3  Lev.  35,  Mayor,  &c,  of  Norwich  v.  Johnson,  S.  C.  3  Mod.  90,  it  was  objected  in  - 
error,  that  if  the  plaintiff  is  entitled  to  this  action,  it  must  be  by  the  statute  of  Glou- 
cester ;  but  that  it  will  not  lie  against  the  defendant  even  by  that  statute,  because  the 
action  is  thereby  given  against  the  tenant  by  the  curtesy,  in  dower,  for  life  or  years, 
and  treble  damages,  &c,  and  that  the  defendant  is  neither  of  these  ;  and  that  it  being 
so  penal  a  law  shall  be  taken  strictly.  Butter  cur. — This  is  a  remedial  as  well  as  a 
penal  law,  and  therefore  shall  have  a  favourable  construction.  And  the  judgment 
was  affirmed. 

(I)  At  what  Time  an  Action  of  Waste  may  be  brought. 

When  the  reversion  is  devested,  the  lessor  cannot  have  an  action  of 
waste,  because  the  writ  is,  that  the  lessee  did  waste  ad  ezhceredationem 
of  the  lessor,  and  that  inheritance  must  continue  at  the  time  of  the  action 
brought. 

1  Inst.  356  a. 

If  a  man  brings  an  action  of  waste,  and  dies  before  any  recovery,  his 

heir  shall  not  have  an  action  for  the  same  waste,  because  the  damages 

do  not  belong  to  him.     Contra  20  E.  l,(a)  Liber  Parliamentarism  33  6, 

adjudged    in    parliament   upon  debate,  and   there   commanded   to  the 

justices  henceforth  to  do  accordingly  in  such  case. 

[(a)  That  is,  the  statute  of  20  E.  1,  c.  4 ;  which  statute  is  an  authoritative  decision 
in  parliament  of  a  point  arising  in  a  cause  then  pending  in  the  bench;  upon  Avhich 
occasion  the  parliament  not  only  declared  how  the  law  should  be  held  in  future,  but 
likewise  directed  the  justices  to  proceed  in  that  manner  in  the  case  then  before  them. 
Note :  This  act  is  not  to  be  found  either  upon  the  parliament  rolls,  or  among  the 
statute  rolls.]  Lord  Coke  says,  upon  the  statute  of  Gloucester,  cap.  5,  it  has  been 
received  for  a  certain  rule,  that  if  waste  be  committed,  and  he  in  the  reversion  die, 
the  action  of  waste  fails,  for  that  the  heir  cannot  recover  damages  for  the  waste  in  the  life 
of  the  ancestor,  and  the  waste  was  not  done  to  the  disinheritance  of  the  heir  ;  and  yet 
the  law  extends  the  action  of  waste  favourably,  as  much  as  with  convenience  may  be, 
lest  waste  which  is  hurtful  to  the  commonwealth  should  remain  unpunished.  2  Inst.  305. 

If  lessee  for  years  does  waste,  and  after  lessor  enters  upon  him  by  tort, 

he  shall  not  have  an  action  of  waste  against  him  during  his  own  seisin, 

before  re-entry  by  the  lessee ;  because  the  action  ought  to  be  in  the  tenet. 

Bro.  Waste,  pi.  84 ;  F.  N.  B.  GO,  (L),  in  the  new  notes  there  (6),  says,  the  action  is 
suspended,  and  cites  S.  C. 

If  lessee  for  life  does  waste,  and  after  aliens  in  fee,  and  lessor  enters 
for  forfeiture,  yet  he  shall  have  an  action  of  waste  against  lessee ;  for 
peradventure  if  he  had  not  entered  he  should  be  disinherited.  45  E.  3, 
0  b ;  14  H.  8,  14 ;  8  H.  6, 10.  (It  seems  in  those  cases  he  may  have  his 
action  in  the  tenet;  then  it  is  clear  that  it  lies.) 

Bro.  Waste,  pi.  42,  cites  S.  C.  per  Finchden,  that  the  reversioner  shall  not  have 
action  of  waste  after  his  entry  for  waste  done  before  the  alienation.  (In  that  case  the 
action  was  brought  in  the  tenant.) 

If  tenant  in  dower  leases  for  her  life  to  him  in  reversion  within  age, 
who  never  took  the  profits,  but  at  full  age  disagrees  to  the  lease ;  he  may 
have  an  action  of  waste  for  waste  in  the  mean  time. 

30  E.  3,  c.  1G.  So,  if  she  leases  to  the  heir  within  age,  and  a  stranger,  rendering  rent 


OF  WASTE.  449 

(I)  At  what  Time  an  Action  of  Waste  may  be  brought. 

on  condition  of  re-entry  for  non-payment  of  rent.     F.  N.  B.  55,  (E),  in  the  new  notes 

(a). But  if  at  the  time  of,  or  during  the  waste  done,  the  heir  takes  any  of  the 

profits,  the  waste  is  dispunishable.     F.  N.  B.  55,  (E),  in  the  new  notes  (a). 

If,  after  waste  done,  the  lessor  grants  over  the  reversion  in  fee,  and 
retakes  it,  yet  lie  shall  not  have  an  action  for  the  said  waste. 

1  Inst.  53  b. 

So,  if  after  the  waste  done,  the  lessor  grants  over  the  reversion,  and 
retakes  it  to  him  and  his  feme,  and  to  his  heirs ;  yet  he  shall  not  have 
an  action  for  the  said  waste,  -because  the  estate,  which  was  privy  to  the 
waste  committed,  is  altered. 

1  Inst.  53  b. 

If  lease  be  made  for  life,  the  remainder  for  years,  an  action  of  waste 
lies  against  lessee  for  life,  notwithstanding  the  remainder  for  years ;  for 
de  minimis  non  curat  lex. 

3  Roll.  Abr.  829  :  1  Inst.  54.  S.  P.  For  the  recovery  therein  shall  destroy  the  term 
far  years.     2  Inst.  301 ;  F.  X.  B.  59,  (II). 

But,  if  there  be  lessee  for  life,  remainder  for  life,  action  of  waste 
does  not  lie  during  the  continuance  of  the  mesne  remainder. 

2  Boll.  Abr.  829.     But  in  such  case  an  injunction  has  been  granted  out  of  Chancery. 

Mo.  554,  pi.  748,  Anon.,  [and  3  Atk.  94,  210,  723.] Bro.  Waste,  pi.  5G,  cites  S.  C. 

where  Persay  held  it  did  not  lie ;  but  Belknap  contra.     But  Broke  says,  that  the  law 

at  this  day  seems  to  be  with  Persay. For  if  he  should  have  an  action  against  the 

first  lessee,  then  the  estate  of  him  in  remainder  shall  be  destroyed  ;  and  such  con- 
struction must  be  made  to  preserve  the  estate  of  a  stranger,  who  is  in  no  fault ;  but 
if  remainder-man  for  life  dies,  then  the  waste  is  punishable  as  well  before  as  after 
his  death.     2  Inst.  301. 

So,  if  there  be  lessee  for  life,  the  remainder  for  life,  the  remainder  in 
fee  to  another,  he  in  remainder  shall  not  have  an  action  of  waste  against 
the  first  lessee,  during  the  continuance  of  the  remainder  for  life. 

1  Inst.  54;  F.  N.  B.  58,  (C),  says  that  it  lies  notwithstanding;  and  at  59,  (II)r 
savs,  it  appears  by  the  register  that  the  writ  is  maintainable,  though  the  mesne  re- 
mainder-life be  between  the  tenant  for  life  and  him  in  reversion. So,  if  remainder- 
man for  life  surrenders  his  estate  to  him  in  the  remainder  or  reversion  in  fee.     5  Rep. 

70  b,  Paget's  case. And  F.  N.  B.  58,  (C),  in  the  new  notes  {b),  says,  that  waste 

does  not  lie  till  after  the  death  or  surrender  of  the  particular  estate.  And  1  Inst.  54 
a,(<),  says,  that  where  it  is  said  in  the  register,  and  in  F.  N.  B.,  that  waste  does  lie, 

it  is  to  be  understood  after  the  death  or  surrender  of  the  mesne  remainder. But 

though  he  that  has  the  inheritance  cannot  have  action  of  waste  during  the  life  of  the 
remainder-man  for  life;  yet  it  was  resolved,  that  he  may  seize  timber  trees  cut  down 
by  the  tenant  for  life  ;  and  also  that  a  trover  and  conversion  would  lie  for  all  of  them, 
though  he  never  seized  parcel  of  them:  for  by  the  cutting  them  down  an  absolute 
property  is  vested  in  the  plaintiff,  unless  they  had  been  cut  down  for  reparations,  and 

so  employed  in  convenient  time.     All.  81,  82,  &c,  Udall  v.  Udall. And  Rolle  was 

of  opinion,  that  an  action  of  trover  would  lie  for  the  reversioner  against  tenant  in 
tail,  after  possibility  of  issue  extinct ;  and  he  declared  he  was  himself  of  that  opinion, 
because  he  had  only  an  impunity  if  he  committed  waste,  but  no  interest  in  the  trees. 
P.  10  Rep.  44  b,  Jenning's  case. 

But,  if  there  be  lessee  for  life,  the  remainder  for  life,  after  the  death 
of  the  remainder-man,  an  action  of  waste  lies  against  lessee  for  waste 
committed  during  the  continuance  of  the  remainder. 

2  Roll.  Abr.  829,  contra, ;  50  E.  3,  4.  So,  where  a  lease  is  made  for  years,  re- 
mainder for  life,  the  remainder  in  fee ;  and  lessee  for  years  does  waste,  and  then  the 
lessee  for  life  in  remainder  dies,  the  remainder-man  in  fee  shall  have  waste,  for  waste 
done  during  the  mesne  remainder  for  life.     Mo.  18,  pi.  64,  Anon. 

Likewise,  if  a  feme,  lessee  for  life,  marries,  and  after  lessor  confirms  the 
estate  of  the  baron  to  have  for  his  life,  by  which  the  baron  has  a  reversion 
Vol.  X.— 57  2  p  2 


450  OF  WASTE. 

(I)  At  what  Time  an  Action  of  Waste  may  be  brought. 

for  life ;  yet,  if  waste  be  committed  after,  the  action  lies  against  baron 
and  feme,  and  this  reversion  is  not  any  impediment. 

2  Roll.  Abr.  829  ;  1  Inst.  299  b,  S.  P.  Because  the  baron  himself  did  the  waste 
and  the  wrong,  and  therefore  shall  not  excuse  himself  for  doing  the  waste,  in  respect 
that  he  himself  has  the  remainder. 

If  lessee  for  life  and  for  a  year  after  commits  waste,  an  action  of  waste 
lies  against  him. 

2  Roll.  Abr.  829.  A  defendant  pleaded  that  the  lease  was  to  him,  his  heirs,  and 
assigns  for  life,  and  a  year  after,  and  demanded  judgment  of  the  writ.  But  Thorp 
said,  that  in  this  case  the  plaintiff  could  not  have  other  writ  than  what  he  had,  and 
that  defendant  might  save  his  estate  by  protestation  ;  and  so  he  did,  and  pleaded 
mil  waste  done.     Bro.  Waste,  pi.  101. 

If  a  man  leases  for  life,  and  after  grants  the  reversion^  for  years,  and 
••after  lessee  for  life  commits  waste,  no  action  of  waste  lies  against  him 
•during  the  term  for  years. 

1  Inst.  54  a.  For  he  himself  has  granted  away  the  reversion  in  respect  whereof  he 
is  to  maintain  the  action.     Id.  ibid,  and  273  a. 

But,  if  a  man  leases  for  life  or  for  years,  and  after  grants  a  lease  to 
commence  after  the  end  of  the  first  estate,  an  action  lies  against  the  first 
lessee,  notwithstanding  this  future  interest :  and  the  term  shall  be  saved 
in  this  case. 

1  Inst,  a,  54. 

If  there  be  a  feoffee  of  land  upon  condition,  and  the  feoffor  enter,  and 
do  trespass,  and  afterwards  the  condition  be  broken,  and  the  feoffor  enter, 
yet  the  feoffee  shall  have  an  action  of  trespass  against  the  feoffor,  notwith- 
standing that  he  hath  not  the  land  wherein  the  trespass  was  done. 

Perk.  I  97. 

Where  a  lease  is  made  to  the  husband  and  ivife  for  life  or  years,  there 
the  wife  shall  not  be  punished  after  the  death  of  her  husband  for  ivaste 
done  by  the  husband. 

F.  N.  B.  59,  (J). 

If  a  man  leases  to  A  during  the  life  of  B,  the  remainder  to  him  during 
the  life  of  C,  if  he  commits  waste  an  action  of  waste  shall  lie  against  him. 

1  Inst.  299  b.  So,  if  a  lease  fee  made  to  A  for  his  life,  the  remainder  to  A  for  the 
life  of  B,  if  A  does  waste,  an  action  of  waste  doth  lie  against  him  ;  for  the  wrong- 
doer hath  both  the  estates  in  him ;  and  of  that  opinion  was  Sir  James  Dyer,  C.  J. 
2  Inst.  301. 

But,  if  there  be  a  lease  for  years  or  life,  remainder  to  a  baron  and  feme 
in  special  tail,  and  lessee  do  waste,  and  the  feme  die  toithout  issue  ;  the 
baron  shall  not  maintain  any  action  upon  the  statute. 

Mo.  18,  pi.  64,  Anon.  But  Brown  said,  that  if  the  remainder  be  limited  over  to  the 
baron  and  his  heirs,  and  the  feme  die  after  the  waste  done,  the  baron  (as  he  apprehends) 
shall  have  action  for  this  waste  done  in  the  life  of  his  feme,  because  the  estate  of  tenant 
in  tail  after  possibility  is  drowned  in  the  inheritance.     But  Dyer  denied  it.     Id.  ibid. 

If  lessor  covenants  with  lessee  not  to  bring  action  of  ivaste  during  two 
years  against  him,  and  after,  during  the  two  years,  lessee  does  waste ; 
lessor  may,  after  the  expiration  of  the  two  years,  bring  action  of  waste 
for  the  waste  done  within  the  two  years  ;  for  the  covenant  is  no  dispensa- 
tion as  to  the  waste,  as  it  was  said,  but  only  with  his  complaint  during 
the  two  years. 

Mo.  18,  pi.  64,  Anon.  But  otherwise  it  is,  where  one  makes  a  lease  for  two  years 
dispunishable  of  waste;  for  there  he  has  dispensed  with  the  waste,  and  not  with  the 
action  only.     Id.  ibid.,  Anon. 


OF   WASTE.  451 

(K)  Of  the  Processes  and  Proceedings  in  Actions  of  Waste. 

If  lessee  for  life  without  impeachment  of  waste,  and  reversioner,  join 
in  a  lease  for  years,  lessee  is  dispunishable  of  waste  during  the  life  of  the 
tenant  for  life,  but  after  his  death  he  is  punishable ;  for,  as  Dyer  and  Brown 
Baid,  though  at  first  it  should  be  said  to  be  the  lease  of  tenant  for  life, 
and  the  confirmation  of  him  in  reversion,  yet  by  such  death  it  is  altered 
into  another  nature,  and  shall  be  said  the  lease  of  him  in  reversion. 

Mo.  72,  pi.  196,  Nudigate's  case. 

A  seised  in  fee  makes  a  lease  for  years,  and  afterwards  conveys  the 
reversion  to  the  use  of  himself  for  life,  without  impeachment  of  waste, 
remainder  in  fee :  lessee  for  years  commits  waste :  he  shall  not  have  the 
privilege  to  be  dispunished  of  waste  ;  but  after  the  death  of  him  in  rever- 
sion for  life  he  shall  be  punished. 

Sir  W.  Jo.  51,  pi.  2  ;  Bray  v.  Tracy,  Cro.  Ja.  688,  pi.  4,  S.  C,  but  that  is  only  upon 
the  point  of  a  lease  for  years  to  A,  remainder  for  life  without  impeachment  of  waste 
to  B,  remainder  in  tail  to  C,  but  saying  nothing  of  the  conveyance  subsequent  to  the 
lease  for  years.  The  court  held,  that  the  plaintiff  should  recover  ;  for  though  in  the 
life  of  B  the  termor  by  his  assent  might  have  committed  waste,  and  he  had  not  been 
punishable  afterwards,  yet  when  he  is  dead,  he  that  committed  the  waste  has  done  it 
to  the  disherison  of  him  in  remainder,  and  it  is  all  one  as  if  it  had  been  done  after 
the  death  of  tenant  for  life. 

It  was  agreed,  that  the  heir  shall  not  have  action  of  waste,  in  time 
of  his  father,  but  in  his  own  time,  and  issue  was  taken  accordingly. 
Bro.  Waste,  pi.  76. 

(K)  Of  the  Process  and  Proceedings  in  Actions  of  Waste. 

The  13  E.  1,  c.  14,  enacts,  That  of  all  manner  of  waste  done  to  the  da- 
mage of  any  person,  there  shall  from  henceforth  be  no  writ  of  prohibition 
awarded,  but  a  writ  of  summons,  so  that  he  of  whom  complaint  is,  shall 
ansioer  for  waste  done  at  any  time.  And  if  he  come  not  after  the  su?n- 
mons,  he  shall  be  attached,  and  after  the  attachment  he  shall  be  distrained. 

If  the  defendant  be  returned  nihil,  &c,  so  as  peradventure  he  was  never  summoned, 
nor  any  other  writ  served  whereby  he  might  have  notice,  yet  a  writ  of  inquiry  of  waste 
shall  be  awarded  by  this  branch  of  the  statute,  for  here  it  is  not  specified  that  issues 
should  be  returned,  &c,  but  generally ;  and  by  the  writ  the  waste  shall  be  inquired 
of  by  the  oath  of  twelve  men,  where  the  defendant  or  any  for  him  may  attend  if  he 
will,  and  the  jurors  may  find  against  the  plaintiff.     2  Inst.  389. 

And  if  he  come  not  after  the  distress,(a)  the  sheriff  shall  be  command- 
ed^) that  in  proper  person  he  shall  take  with  him  twelve,  ^c,  and  shall 
go  to  the  place  wasted. 

(a)  If  the  defendant  appears  upon  the  distress,  and  pleads,  and  after  makes  default, 
the  plaintiff  shall  not  by  this  branch  have  a  writ  to  inquire  of  the  waste,  because  it  is 

out  of  the  words  and  purview  of  this  act.     2  Inst.  390. (6)  Here  are  three  things 

to  be  observed :  First,  That  the  sheriff  ought  to  go  in  proper  person  ;  for  that  though 
in  rei  veritate  he  is  no  judge,  yet  this  writ  is  in  nature  of  a  commission  unto  him,  and 
he  is  i«  loco  judicis,  and  therefore  he  ought  to  go  in  propria  personam.  Socondly, 
Where  some  have  holden  that  the  sheriff  may  inquire  upon  this  writ,  by  oath  of  six 
or  eight  persons,  it  appears  that  there  ought  not  to  be  under  twelve,  for  the  words  of 
this  branch  are  assumptis  secum  twelve.  Yet  this  is  but  an  inquest  of  office,  for  it  is 
taken  sans  mist  des  parties,  that  is,  without  any  issue  joined.  Thirdly,  The  sheriff 
mast  go  ad  locum  vasiatum  together  with  the  jurors,  and  view  the  same,  for  ista  cadunt 

potius  sub  visa  quam  sub  avditu.     2  Inst.  390. It  was  agreed  by  the  whole  court, 

that  if  six  of  the  jury  are  examined  upon  a  voire  dire,  if  they  have  seen  the  place 
wasted,  that  it  is  sufficient,  and  the  rest  of  the  jury  need  not  be  examined  upon  a 
voire  dire,  but  only  to  the  principal.     Godb.  290*,  pi.  298,  Gage  v.  Smith. 

And  shall  inquire  of  the  waste  done,  and  shall  return  an  inquest,  and 


452  OF  WASTE. 

(K)  Of  the  Process  and  Proceedings  in  Actions  of  Waste. 

after  the  inquest  returned  they  shall  pass  into  judgment,  like  as  it  is  con- 
tained in  the  statute  of  Grloucester. 

If  the  waste  be  assigned  in  divers  towns,  the  sheriff  and  the  jurors  must  view  all 
the  places  wasted  in  every  of  the  towns,  but  he  may  inquire  thereof  in  any  one  of  the 
towns,  and  this  copulative  doth  so  knit  the  words  together,  as  he  cannot  inquire  in  a 
foreign  town.    2  Inst.  390. 

The  process  incident  to  action  of  waste  is,  first,  a  writ  of  summons,  - 
made  by  the  cursitor  of  the  county  where  the  land  lies,  and  on  the  return 
of  this  writ  the  defendant  may  essoin,  and  the  plaintiff  adjourn,  &c. 
Then  a  pone  is  to  be  made  out  by  the  filazer  of  the  county,  on  the  return 
of  which  a  distringas  issues  for  the  defendant  to  appear ;  and  upon  his 
appearance  the  plaintiff  declares,  and  the  defendant  pleads,  &c.  Or,  if 
the  defendant  makes  default,  a  writ  of  inquiry  goes  to  the  sheriff,  to  in- 
quire by  the  oath  of  twelve  jurors,  what  damage  the  plaintiff  hath  sus- 
tained, and  then  the  party  hath  judgment  to  recover  the  treble  of  it. 
Also,  after  judgment  entered,  a  writ  of  seisin  is  awarded  to  the  sheriff  to 
give  possession  to  the  plaintiff  of  the  place  wasted. 
3  Cpmpl.  Attorney,  250,  251,  258,  259. 

In  waste  against  two  by  the  bishop  ad  exhwredationem  ecclesice,  and 
process  continued  till  the  grand  distress  returned,  one  came  and  the  other 
made  default,  and  he  who  appeared  was  compelled  to  answer  alone,  for 
the  process  is  determined  against  the  other. 

Bro.  Waste,  pi.  99. 

In  an  action  of  waste  the  jurors  shall  have  a  view  of  the  place  wasted, 
&c,  as  an  incident  to  the  action  of  waste ;  for  in  the  action  at  the  com- 
mon law,  the  jurors  should  have  had  the  view. 

Vin.  Abr.  ( V)  22,  (P)  491.  It  was  agreed  by  the  whole  court,  if  the  jury  be  sworn 
they  knew  the  place,  it  is  sufficient,  although  they  be  not  sworn  that  they  saw  it,  and 
although  that  the  place  wasted  be  shown  to  the  jury  by  the  plaintiff's  servants,  yet 
if  it  be  by  the  commandment  of  the  sheriff,  it  is  as  sufficient  as  if  the  same  had  been 
showed  unto  them  by  the  sheriff  himself.     Godb.  209,  pi.  289,  Gage  v.  Smith. 

Though  the  view  in  an  action  of  waste  was  not  returned  on  the  process 
on  which  the  first  jurors  appeared,  and  were  sworn,  and  tried  the  issue, 
yet  it  was  resolved  to  be  good  enough  ;  because  although  the  jurors  ought 
to  have  the  view,  yet  it  was  not  necessary  for  the  officer  to  return  it ;  but 
the  court  on  the  trial  ought  to  examine  the  matter,  whether  the  jurors 
have  had  the  view  or  not ;  for  on  the  trial  six  jurors,  at  least,  ought  to 
have  had  the  view,  else  the  jury  shall  not  be  taken.  And  a  day  of  con- 
tinuance was  given  eo  quod  the  jurors  had  not  the  view,  and  interim  vi- 
deant,  $c. ;  and  in  an  assize  the  view  of  the  jurors  is  requisite,  but  it  is 
never  returned  ;  for  perhaps  neither  the  sheriff  nor  the  officer  knows  whe- 
ther the  jurors  have  had  the  view  or  not ;  for  the  words  of  the  writ  are 
et  interim,  videant,  $c,  and  not  et  interim  haberifac.  visum:  so  that  the 
jurors  may  view  the  place  wasted  when  the  officer  is  not  present ;  and  there- 
fore the  officer  is  not  obliged  to  return  the  view ;  but  it  ought  to  be  ex- 
amined on  the  trial,  and  the  party  may  make  his  challenge  to  the  jurors 
for  that  cause,  if  six  of  them,  at  the  least,  have  not  had  the  view,  and  the 
officer  had  returned  that  they  had  the  view  :  yet,  if  it  appeared  on  the  trial, 
by  examination,  that  they  had  not  the  view,  the  return  would  be  to  no 
purpose,  nor  conclude  any  of  the  parties,  plaintiff  or  defendant. 

2  Saund.  254,  Green  v.  Cole. 
||  Where  the  jury  found  a  verdict  for  the  plaintiff,  with  damages,  but 


OF  WASTE.  453 

(K)  Of  the  Process  and  Proc&edings  in  Actions  of  Waste. 

omitted  to  find  the  place  wasted;  the  court  held,  that  the  verdict  could 
not  be  sustained,  and  made  the  rule  absolute  for  a  new  trial. 

Redfern  v.  Smith,  2  Bing.  R.  262.{| 

4  &  5  Ann.  c.  16,  §  8,  enacts,  That  in  any  actions  in  any  of  her 
majesty's  courts  at  Westminster,  where  it  shall  appear  to  the  court  that 
it  will  be  necessary  that  the  jurors  should  have  the  view  of  the  place  in 
question,  the  courts  may  order  special  writs  of  distringas  or  habeas  cor- 
pora, by  which  the  sheriff  or  other  officer  shall  be  commanded  to  have 
six  out  of  the  first  twelve  of  the  jurors,  or  some  greater  number,  at  the 
place  in  question,  some  convenient  time  before  the  trial,  who  shall  have 
the  matters  in  question  shown  to  them  by  two  persons  in  the  writ  named 
to  be  appointed  by  the  court. 

In  an  action  of  waste  there  shall  be  summons  and  severance,  for  the 
writ  is  ad  exheeredationem,  and  the  action  of  waste  is  a  plea  real. 

2  Inst.  307. 

A  plaintiff  shall  have  costs  in  all  actions  of  waste,  where  the  damages 
found  do  not  exceed  twenty  nobles,  which  he  could  not  by  the  common 
law. 

Stat  8  &  9  AY.  3,  c.  11. 

Before  any  waste  is  done,  a  prohibition  may  be  had,  directed  to  the 
sheriff  not  to  permit  it;  or  he  in  remainder,  &c,  may  have  an  injunction 
out  of  the  Chancery  to  stay  the  waste,  and  enter  the  house  or  lands,  to 
see  if  waste  is  committed,  &c. 

2  Inst  146,  306 ;  11  Rep.  49,  Liford's  case. 

Though  the  estate  be  executed  by  the  statute  of  uses,  yet  there  may  be 
a  general  torit  and  special  count. 

Hobart's  Rep.  112,  Skeate  v.  Oxenbridge. 

If  the  writ  mentions  that  A,  being  seised  of  the  land  since  27  H.  8, 
enfeoffed  B  to  uses,  &c,  and  derives  under  it,  though  the  writ  does  not 
mention  that  the  feoffment  was  to  B  in  fee  ;  yet  inasmuch  as  the  use  had 
been  to  make  the  writs  so  ever  since  the  statute,  it  is  to  be  allowed,  though 
if  it  was  not  in  fee  to  B,  but  an  estate  for  the  life  of  B,  it  will  pass. 
But  the  declaration  upon  it  ought  to  allege  the  feoffment  to  be  in  fee. 

Hobart's  Rep.  112,  Skeate  v.  Oxenbridge. 

A  man,  after  the  statute  of  27  H.  8,  made  a  feoffment  in  fee  to  the 
use  of  himself  for  term  of  his  life,  and  after  his  decease  to  the  use  of 
J  S  and  his  heirs.  The  feoffee  does  waste,  and  J  S  brought  his  action 
of  waste.  And  now  if  his  writ  shall  be  general  or  special  was  demurred 
in  judgment.  And  Hutton  and  the  other  justices  were  clearly  of  opinion, 
that  the  plaintiff  ought  to  have  a  special  writ ;  and  so  it  was  adjudged 
afterwards. 
.  Hetl.  79,  Fossam's  case. 

In  waste  against  feme  on  a  lease  made  to  herself  for  life,  she  pleaded 
that  the  lease  was  made  to  her  and  her  baron  for  their  two  lives,  and  that 
after  the  baron  s  death  no  waste  was  done,  and  so  did  not  plead  to  the 
writ ;  but  it  was  said  the  writ  had  been  better  if  the  lease  had  been  sup- 
posed to  the  baron  and  feme. 

Theloal's  Dig.  lib.  11,  c.  52,  £  7. 

Waste  by  the  feoffees  in  use  against  the  lessee  for  years  of  cestui  que 
use  lies  well,  though  no  form  of  writ  be  thereof  given  in  the  register  or  in 
the  statute.     But  quaere  the  form  of  this  writ ;  for  it  was  cum  W.  <f  M. 


454  OF  WASTE. 

(K)  Of  the  Process  and  Proceedings  in  Actions  of  Waste. 

fuerunt  seisiti  ad  usum  C,  and  did  not  say  of  what  estate ;  and  there- 
fore held  ill  in  this  by  several. 

Bro.  Waste,  pi.  2. 

In  a  writ  of  waste,  if  the  premises  of  the  writ  recite  quod  non  liceat 
alieui  facere  vastum  in  domibus,  boscis,  et  gardinis,  and  in  the  end  of  the 
writ  it  is  said  that  the  defendant  hast  done  waste  in  lands,  houses,  woods, 
gardens,  and  exile  of  men;  so  as  there  is  more  in  the  end  of  the  ivrit 
titan  is  in  the  premises,  yet  the  writ  is  good :  and  so  if  less  be  in  the  end 
of  the  writ  than  is  recited  in  the  premises,  yet  the  writ  is  good ;  as  if  it 
had  been  recited  quod  cum  provisum  sit,  quod  non  liceat  alieui  facere 
vastum,  fyc.  in  terris,  domibus,  boscis,  and  gardinis :  and  in  the  end  it  is 
recited  quod  defend,  fecit  vastum  in  terris  only,  or  in  boscis  only,  or  in 
domibus  only,  yet  the  writ  is  good. 

F.  N.  B.  56,  (J). 

If  lease  be  made  to  husband  and  wife  for  life,  and  for  twenty  years 
after  their  deaths,  and  the  wife  dies  and  waste  is  committed,  the  wife 
shall  not  be  named  in  the  writ,  nor  the  term  after  her  death. 

Brownl.  238,  Bedell  v.  Bedell. 

Note,  that  the  action  of  waste  against  the  guardian  is  general,  fecit 
vastum,  Sfc,  de  terris,  Spc,  quas  habet  vel  habuit  in  custodia  de  hairedi- 
tate  prcedict.,  which  writ  doth  extend  as  well  to  the  guardian  in  socage 
as  in  chivalry. 

2  Inst.  305. 

1.  In  tohat  cases  the  Action  shall  be  brought  in  the  Tenet. 

If  lessee  for  life  does  waste,  and  grants  his  estate,  yet  action  of  waste 
lies  against  him  in  the  tenet. 

2  Roll.  Abr.  829.  It  shall  be  in  the  tenet  during  the  term,  because  in  the  eye  of  the 
law  he  is  tenant  as  to  the  action  of  waste,  and  against  him  that  was  the  wrongdoer 
did  the  action  accrue,  which  he  cannot  avoid  by  his  assignment,  and  against  him  shall 
the  treble  damage  bo  recovered,  and  the  place  wasted.  And  so  it  is  of  mesne  as- 
signees; a  just  interpretation  that  he  that  did  the  wrong  should  answer  the  same;  and 
this  is  the  cause  that  general  non-tenure  is  no  plea  in  an  action  of  waste,  but  special 
non-tenure  may  be  pleaded,  as  the  granting  over  of  his  estate,  before  which  no  waste 

was  done.    2  Inst.  302. In  waste  it  is  no  j)lea  that  the  defendant  had  nothing  in  the 

land  the  day  of  the  writ  purchased  ;  for  if  he  does  waste  and  grants  his  estate  over,  yet 
waste  lies  against  him  ;  for  the  grantee  may  say  that  no  waste  was  done  after  the  grant 
made  to  him,  and  the  other  will  incur  no  mischief  if  he  has  done  no  waste  ;  for  he  may 
say  that  such  a  day  he  granted  over  his  estate,  before  which  grant  no  waste  was  done. 
Per  Finchden  clearly,  and  the  action  of  waste  was  quas  tenet.  And  yet  non-tenure  is 
no  plea  ;  for  by  him  waste  is  only  trespass,  and  by  recovering  against  him  the  grantee 
shall  lose  the  place  wasted ;  for  the  plaintiff  has  elder  title  than  the  grantee.     Bro. 

Waste,  pi.  22. In  waste  quas  tenet  the  defendant  said  that  he  had  nothing  the  day  of 

the  writ  purchased,  nor  ever  after,  judgment  of  the  writ,  and  held  no  plea ;  for  if  a  man 
does  waste,  and  grants  his  estate  over,  the  writ  shall  say  that  they  held  as  long  as  the 
term  continual,  and  by  this  the  grantee,  who  is  no  party  to  the  writ,  shall  lose  the 
place  wasted.     Bro.  Waste,  pi.  25. 

If  a  guardian  commits  waste,  and  grants  his  ward  over,  the  ward  shall 
have  waste,  during  the  infancy  in  the  tenet,  against  the  first  guardian  for 
the  said  waste. 

2  Inst.  305. 

And  if  the  ward  brings  it  against  any  during  his  nonage,  it  shall  be 
in  the  tenet. 

Bro.  Waste,  pi.  33.  And  yet  if  he  was  guardian  before  the  writ  purchased,  he  shall 
not  be  charged  but  to  his  own  time,  and  every  guardian  for  his  own  time.     Id.  ibid. 


OF  WASTE.  455 

(K)  Of  the  Process  and  Proceedings  in  Actions  of  Waste. 

If  a  lease  for  life  be  made  upon  condition  that  if  the  lessee  do  such  an 
act,  his  estate  shall  cease,  and  he  commit  such  an  act,  the  writ  shall  be 
brought  against  the  lessee  in  the  tenet,  though  his  estate  is  ended. 

Brownl.  239,  Anon. 

If  feme  lessee  for  life  grants  his  estate  over,  and  after  marries,  the  ac- 
tion shall  suppose  that  tenet. 

2  Roll.  Abr.  829. 

So,  if  lessee  for  life  does  waste,  and  after  aliens,  and  lessor  enters  for 
the  forfeiture,  the  writ  shall  be  in  the  tenet. 

2  Roll.  Abr.  830  ;  Bro.  Waste,  pi.  84,  takes  notice  only  of  lessee  for  years,  (this  was 
the  principal  point  of  the  case,)  and  that  in  such  case  the  writ  shall  be  in  the  tenet; 
but  that  in  case  of  lessee  pur  auter  vie  where  cestui  que  vie  dies,  it  shall  be  in  the  tcnuit. 

Action  was  brought  for  waste  in  lands  quas  tenet  pro  termino  annorum, 
and  counted  that  he  leased  to  the  defendant,  10  H.  7,  for  term  of  one  year, 
to  commence  at  Easter  next  after,  to  continue  for  one  year,  and  so  the 
next  year,  and  so  from  year  to  year  as  long  as  the  parties  pleased,  by 
virtue  of  which  possession,  §c,  he  occupied  by  the  space  of  twenty-four 
years,  and  assigned  the  waste  certain,  £c.  The  defendant  pleaded  no 
waste  done,  and  found  for  the  plaintiff.  And  the  action  was  brought 
anno  14  H.  8.  And  the  court  held  that  the  count  abated  the  writ ;  for 
where  it  is  tenet,  and  is  thirty  years  after  the  making,  and  counts  of 
twenty-four  years,  this  is  a  determination  of  the  lease  a  long  time  before 
the  writ  purchased,  and  therefore  shall  be  tenuit,  and  not  tenet. 

Bro.  Waste,  pi.  95  ;  Bui  where  a  man  leases  for  years,  and  brings  writ  quas  tenet  of 
the  waste,  &c,  and  the  term  expires  pending  the  writ,  yet  this  writ  quas  tenet  is  good, 
quod  cur.  concessit. 

If  a  lessor  bring  waste,  the  writ  shall  be  quod  fecit  vastum,  $c,  in  ter- 
ris  which  he  holds  of  him. 

2  Roll.  Abr.  830. 

But  if  he  in  the  remainder  bring  action  of  waste,  the  writ  shall  not  be 
which  he  holds  of  him,  because  he  does  not  hold  of  him. 

2  Roll.  Abr.  830. 

So,  if  such  remainder  escheat,  and  the  lord  bring  the  action  of  waste, 
the  writ  shall  not  be,  which  he  holds  of  him. 

2  Roll.  Abr.  830 ;  Bro.  Waste,  pi.  6. 

If  the  father  lease  for  life  and  die,  and  afterwards  his  heir  confirm  the 
estate  of  the  lessee  for  his  life,  he  shall  have  action  of  waste,  quas  tenet 
of  his  demise ;  because  the  first  lease  is  determined  by  the  confirmation. 
Per  Dyer  and  Brown. 

Mo.  72,  pi.  190,  in  Nudigate's  case. 

If  there  are  two  joint-tenants  of  land  limited  to  them  and  the  heirs  of 
one,  and  they  join  in  a  lease  for  years,  and  the  tenant  for  life  dies,  the 
other  shall  have  an  action  of  waste  of  his  demise.     Per  Dyer  and  Brown. 

Mo.  72,  pi.  196,  in  Nudigate's  case. 

2.  In  what  Cases  it  shall  be  brought  in  the  Tenuit. 
There  is  not  any  writ  in  Chancery  in  the  tenuit  against  tenant  for  his 
own  life. 
2  Roll.  Abr.  830. 


456  OF  WASTE. 

(K)  Of  the  Process  and  Proceedings  in  Actions  of  Waste. 

But,  it  shall  be  brought  in  the  tenuit  against  lessee  for  years  after  the 
term  passed. 
2  Roll.  Abr.  830. 

But,  if  it  be  not  brought  in  the  tenuit,  yet,  if  there  are  any  words  in 
the  writ  which  imply  that  it  is  past,  it  is  good,  as  quas  ei  dimisit. 
2  Roll.  Abr.  830. 

After  the  death  of  cestui  que  vie  it  shall  be  brought  against  the  tenant 

pur  auter  vie  in  the  tenuit. 

2  Roll.  Abr.  830;  Bro.  Waste,  pi.  47,  cites  S.  C.  And^w  Persay,  if  lease  be  made 
to  the  feme,  and  slie  take  baron,  who  does  waste,  and  the  feme  die,  waste  against  the 
baron  shall  be  quod  tenuit.  Bro.  Waste,  pi.  103,  S.  P.  For  he  may  hold  over  the 
term. 

If  tenant  pur  auter  vie  do  ivaste,  and  alien,  and  lessor  enter  for  the 
forfeiture,  the  writ  shall  be  against  hiui  in  the  tenuit. 
2  Roll.  Abr.  830. 

Likewise,  if  waste  be  brought  against  a  guardian  after  full  age  of  the 
ward,  the  writ  shall  be  in  the  tenuit. 
2  Roll.  Abr.  830. 

So  it  shall  be  in  the  tenuit,  if  it  be  brought  after  full  age  against  a 
guardian  for  ivaste  before  assignment  over. 
2  Roll.  Abr.  830. 

If  feme  lessee  for  years  do  waste,  and  the  term  incur,  and  she  marry, 
the  writ  shall  be  against  baron  and  feme,  and  shall  suppose  that  they  tenue- 
runt.     ( Qucere  this,  for  it  seems  it  shall  be  the  feme  tenuit  dum  sola  fuit.) 
2  Roll.  Abr.  830. 

If  feme  tenant  pur  auter  vie  do  waste,  and  cestui  que  vie  die,  and  the 
feme  marry,  the  writ  shall  be  that  the  feme  tenuit. 
2  Roll.  Abr.  830. 

If  the  lessee  make  a  feoffment,  and  the  lessor  re-enter,  the  action  of 
waste  shall  be  in  the  tenuit,  because  the  lease  is  determined.  And  where 
he  continues  it,  it  shall  be  quas  tenet.     Note  the  diversity. 

Bro.  Waste,  pi.  95. 

So,  if  tenant  do  waste,  and  then  surrender  to  his  lessor,  the  writ  shall 
be  in  the  tenuit,  as  some  hold;  but  others  hold  it  should  be  in  the  tenet, 
whether  he  be  tenant  for  life  or  years. 

Bro.  Waste,  pi.  95  ;  F.  N.  B.  GO,  (L,)  in  the  new  notes  there,  (b)  S.  P.  And  if  he 
in  the  reversion  agree  thereunto,  he  shall  not  have  an  action  of  waste  in  the  tenuit, 
for  he  cannot,  by  his  own  act,  alter  the  form  and  nature  of  his  action,  from  the  tenet 
to  the  tenuit;  and  he  cannot  plead  that  before  such  a  surrender  no  waste  was  done. 
2  Inst.  304. 

Likewise,  if  grantee  of  a  term  upon  condition  do  waste,  and  after  the 
grantor  enter  for  condition  broken,  an  action  of  waste  shall  be  maintain- 
able against  the  grantee  in  the  tenuit. 

5  Rep.  12  b,  Saunder's  case. 

Where  A  was  lessee  for  years  and  devised  his  term  to  B,  and  made  C 
his  executor,  and  died,  and  C  did  ivaste,  and  assented  to  the  devise  ;  in 
this  case,  though  between  the  executor  and  devisee  this  has  relation,  and 
the  devisee  is  in  by  the  divisor,  yet  an  action  of  waste  shall  be  maintain- 
able against  the  executors  in  the  tenuit. 

5  Rep.  12  b,  Saunder's  case. 


OF  WASTE.  457 

(L)  Of  the  Pleadings  in  Action  of  Waste. 

It  is  a  good  plea  in  waste,  that  the  house  was  ruinous  at  the  time  of 
the  demise,  and  therefore  fell :  or  that  the  house  or  trees  fell  by  wind  or 
tempest. 

Bro.  Waste,  pi.  130. 

In  an  action  of  waste  brought  by  the  lessor  against  the  lessee,  the  lessee 
in  respect  of  privity  cannot  plead  riens  en  le  reversion  ;  but  he  must  show 
how  and  by  what  means  the  reversion  is  divested  out  of  him :  but  if  the 
grantee  of  a  reversion  brings  an  action  of  waste,  the  lessee  may  plead 
generally,  that  he  has  nothing  in  the  reversion. 

1  Inst.  35G,  a. 

In  an  action  of  waste  by  the  heir  against  his  father,  upon  a  gift  to  the 
father  and  mother  and  to  the  heirs  of  the  mother,  the  tenant  said,  that  he 
discontinued  to  11  in  the  life  of  the  feme,  absque  hoc  that  the  plaintiff  had 
any  thing  in  the  reversion,  in  the  right  of  his  wife,  the  day  of  the  writ 
purchased,  or  after  ;  and  the  plea  was  held  double  :  and  per  Martin  and 
others,  nothing  in  reversion  only  is  a  good  plea  there.  Contra,  where 
the  plaintiff  counts  of  his  own  lease,  or  of  the  lease  of  his  ancestor.  But 
it  is  a  good  plea  in  waste  ex  assignatione,  upon  grant  of  reversion  to  the 
plaintiff.  Note  the  diversity. 
Bro.  Waste,  pi.  85. 

And  in  waste  against  tenant  by  the  curtesy,  it  is  a  good  plea  that  he 
discontinued  in  fee  to  R  in  the  life  of  the  feme,  and  after  II  leased  to  him 
for  his  life,  saving  the  reversion,  and  so  nothing  in  reversion  the  day  of 
the  writ  purchased,  &c. 

Bro.  Waste,  pi.  85. 

And  where  the  plaintiff  counts  of  his  own  lease,  or  of  his  ancestor's, 
the  tenant  may  say  quod  non  dimisit,  and  show  how  the  heir  has  granted 
the  reversion  to  another  to  whom  he  attorned,  after  which  attornment  no 
waste  done. 

Bro.  Waste,  pi.  85. 

In  waste  the  defendant  said  as  to  the  grange,  that  the  moiety  was  de- 
cayed before  the  lease,  and  the  other  moiety  was  uncovered  by  tempest ; 
and  before  the  defendant  could  repair  it,  the  plaintiff  entered  and  was 
seised  the  day  of  the  writ  purchased  ;  judgment  si  actio.  Per  Hank,  the 
last  plea  is  double,  the  tempest  and  the  entry ;  but  Hull,  contra. 

Bro.  Waste,  pi.  09,  for,  per  Hull,  the  entry  is  all  the  matter,  for  the  tempest  is  in  it 
waste,  unless  the  defendant  permits  the  timber  to  rot  after  the  tempest.  Bro.  Double 
Pica,  pi.  30. 

Where  a  lease  is  upon  a  condition,  that  if  the  tenant  suffers  waste  he 
may  enter,  there  he  cannot  enter  for  uncovering  by  tempest,  unless  he 
says  that  the  lessee  had  sufficient  time  after  to  repair  it,  and  did  not. 
Per  Hull,  clearly. 

Bro.  Waste,  pi.  GO. 

In  waste  for  permitting  a  house  to  be  uncovered,  by  which  the  timber 
became  rotten  and  corrupt,  defendant  said,  that  the  day  of  the  writ  pur- 
chased, the  house  was  sufficiently  repaired  ;  and  the  best  opinion  was,  that 
it  is  no  plea  ;  for  it  is  in  a  manner  double  ;  the  one,  that  if  waste  was  done 
it  is  amended  ;  and  the  other,  that  there  never  was  waste.     But,  if  he  had 

Vol.  X.— 58  2  Q 


458  OF  WASTE. 

(L)  Of  the  Pleadings  in  Action  of  Waste. 

said,  that  after  the  waste,  it  was  sufficiently  repaired  before  the  writ  pur- 
chased, it  seems  to  be  a  good  plea. 
Bro.  Waste,  pi.  86. 

Waste  in  ten  ashes,  the  defendant  said,  that  the  plaintiff  gave  them  to  R 
C,  and  commanded  the  defendant  to  cut  and  deliver  them  to  the  said  R, 
C,  by  which  he  did  so ;  judgment  si  actio :  the  plaintiff  said,  that  he  did 
not  cut  by  his  command.  Per  Newton  and  Paston,  this  is  a  negative  preg- 
nant, by  which  he  said  that  he  did  not  command  him ;  quod  nota. 
Bro.  Negative,  &c,  pi.  21. 

Where  a  lease  is  by  deed  without  impeachment  of  waste,  or  by  grant  to 
be  discharged  of  waste,  all  by  one  and  the  same  deed,  the  tenant  may 
rebut,  and  plead  in  bar  by  it,  and  shall  not  be  driven  to  his  writ  of  cove- 
nant: per  Paston.  Brooke  makes  a  quo?re,  If  he  shall  be  driven  to  his 
writ  of  covenant,  if  it  be  granted  by  another  deed. 

Bro.  Waste,  pi.  89  ;  Bro.  Bar.  pi.  S.  C,  and  Brooke  says,  it  seems  to  him,  that  if 
the  grant  be  by  another  deed,  it  may  well  be  pleaded  in  bar  also. 

If  a  man  leases  land  to  another  sine  impedimento  vasti,  it  shall  be  a 
good  bar  in  an  action  of  waste ;  for  those  words  (sine  impedimento  vasti) 
amount  to  as  much  as  without  impeachment  of  waste. 

2  Roll.  Abr.  835. 

So,  if  a  man  leases  the  manor  of  D,  and  all  lands  and  tenements,  &c, 
parcel  of  the  said  manor,  to  have  the  aforesaid  manor,  lands,  woods,  &c, 
as  house-bote  and  hay-bote,  sine  impedimento  vasti  for  years ;  this  shall 
be  a  good  bar  in  an  action  of  waste ;  for  the  words  (sine  impedimento 
vasti)  relate  to  all  the  things  demised,  and  the  expressing  of  house-bote, 
&c,  is  surplus  and  void. 

2  Roll.  Abr.  835. 

Where  the  defendant  justifies  the  waste  of  cutting  ashes  for  fire-bote, 
he  ought  to  surmise,  that  there  were  no  underwoods  upon  the  land,  &c. 
And  the  same  law  seems  to  be  where  he  takes  beeches  or  other  trees 
which  are  timber,  by  the  best  opinion  of  the  court. 

Bro.  Waste,  pi.  89., 

If  lessee  does  waste  by  cutting  trees,  and  lessor  carries  them  away, 

(admitting  the  carrying  away  tortious,  for  there  it  is  held,  that  he  may 

have  trespass  for  them  against  the  lessor,)  yet  this  is  not  any  matter  in 

bar  of  the  action ;  but  he  shall  be  put  to  his  trespass. 

44  E.  3,  44  b.  For  the  carrying  them  away  by  the  lessor  is  no  excuse  of  the  waste, 
which  the  lessee  was  guilty  of  by  the  abatement.     Bro.  Waste,  pi.  39,  cites  S.  C. 

Waste  in  a  house,  and  also  in  a  wood  in  cutting  the  trees  and  selling 
them,  &c.  The  defendant  as  to  the  house  said,  that  no  waste  was  done ; 
and  to  the  trees,  that  the  house  was  ruinous  in  groundsels  at  the  time  of 
the  demise,  by  which  he  cut  for  reparations,  and  put  the  trees  in  the 
groundsels ;  and  per  cur.  this  is  a  good  plea  where  the  plaintiff  counts 
generally  of  cutting  trees  without  more,  but  contra  where  he  counts  of 
sale,  as  here ;  for  there  he  shall  answer  to  the  sale ;  by  which  Catesby 
justified  as  above,  absque  hoc  that  he  sold  them,  and  good  reason,  for  the 
writ  of  waste  is,  quod  non  liceat  alicui  vastum,  venditionem,  seu  de- 
structionem  facere  in  terris,  domibus,  boscis,  $c. 

Bro.  Waste,  pi.  112.  In  waste  for  trees  cut  and  sold,  the  defendant  must  answer  to 
both :  for  the  salo  is  traversable,  and  admit  that  he  cuts  and  sells  and  buys  them  again, 
and  bestows  them  upon  the  repairs  of  the  house,  yet  the  tort  which  is  supposed  in  the 


OF  WASTE.  459 

(L)  Of  the  Pleadings  in  Action  of  Waste. 

sale  is  not  answered  ;  per  Montague.  And  Knightly  seemed  to  be  of  the  same  opinion  . 
and  he  ought  also  to  conclude  that  it  is  the  same  waste.  D.  35  b,  30  a,  pi.  33,  34,  in 
case  of  Malverer  v.  Spink  ;  D.  90  b,  pi.  8,  in  case  of  Mervin  v.  Lyds. 

Ne  venda  pas  is  no  plea,  but  defendant  shall  justify  as  in  the  plea 
above,  absque  hoc,  that  he  sold ;  or  shall  say,  no  waste  done  generally. 

Bro.  Waste,  pi.  112,  per  Choke,  J. 

In  trespass  it  was  agreed,  that  tenant  for  years  may  cut  wood,  but  it 
was  doubted  of  tenant  at  will;  but  it  seems  that  as  long  as  tenant  at  will 
is  not  countermanded,  he  may  cut  seasonable  wood,  &c.  Littleton  said. 
then  he  ought  to  say,  they  have  used  such  custom  in  the  country  to  cut 
underwood,  for  otherwise  the  justification  is  not  good.      Qusere  inde. 

Bro.  Waste,  pi.  114. 

Note — Where  hedge-bote  or  pale-bote  are  granted  to  be  taken  rcason- 
ablv,  and  where  certain  loads  or  a  certain  number  of  trees  are  granted 
annually  for  that  purpose,  here  it  is  not  necessary  to  show  that  the  fence 
is  in  decay :  and  note,  that  for  fire-bote  it  is  not  necessary,  at  the  time  of 
cutting  to  show  the  necessity:  so,  for  reparation,  for  it  is  reason  and  good 
husbandry  to  cut  them  in  some  convenient  time  beforehand ;  because 
that  which  is  allowed  certainly  at  some  years  may  not  be  sufficient. 

Nov,  23,  Jenkins  v.  Jenkins. 

If  a  man  leases  a  house,  and  grants  farther  to  lessee,  that  he  may  make 
his  best  profit  of  it ;  this  grant  shall  not  be  any  bar  in  an  action  of  waste 
for  abating  the  house  ;  for  the  grant  shall  be  intended,  that  he  shall  make 
his  best  profit  according  to  the  law,  without  tort  and  disinheritance  to 
the  lessor.     Dubitatur. 

17  E.  3,  7,  S.  C.  cited,  Arg.  Lat.  137,  in  the  case  of  Daniel  v.  Upley. 

So,  if  the  lease  be  of  a  wood,  with  grant  to  make  his  best  profit  of  it, 
he  cannot  cut  and  sell.     Dubitatur. 

17  E.  3,  7  b. 

But  if  a  man  leases  land,  and  grants  farther  to  the  lessee,  that  he  shall 

make  his  best  profit  of  the  mines  of  stones,  coal,  and  iron,  open  in  the 

land ;  this  grant  shall  be  a  good  bar  in  an  action  for  waste  for  digging 

coals,  stone,  and  iron,  and  selling ;  for  the  most  profit  of  them  is  to  sell, 

and  he  can  have  little  other  profit. 

17  E.  3,  7  b.  Lessee  for  years  of  mineral  lands,  with  liberty  to  dig,  and  make  his 
profit  of  the  mine,  digged  for  mine,  and  sold  the  gravel  coming  off  it ;  this  is  no  waste, 
if  the  first  act  of  digging  be  not  waste :  for  the  sale  is  not  waste,  that  being  a  subse- 
quent act.     Adjudged,  Godb.  28,  pi.  37 ;  27  E.  C.  B.  Anon. 

In  waste  by  him  in  remainder,  he  ought  to  show  the  deed  of  remainder. 

Bro.  Waste,  pi.  28.  He  shall  show  the  deed,  if  it  be  demanded  by  the  tenant.  But 
per  Finch,  he  need  not  show  it  till  then.     Bro.  Monstrans,  pi.  15. 

In  waste  against  tenant  for  years  of  the  lease  of  the  plaintiff  himself, 
the  defendant  pleaded  that  the  plaintiff  nil  habuit  in  tenementis  but 
jointly  with  his  wife  in  tail,  &c,  and  held  a  good  plea. 

Theloal's  Dig.  lib.  11,  cap.  44. 

So,  in  waste  against  baron  and  feme,  on  a  lease  to  them  both  made 
by  the  plaintiff's  father,  the  tenants  pleaded,  that  the  plaintiff's  father 
ne  lessa  pas  to  them,  modo  et  forma,  &c,  and  held  a  good  plea. 

Theloal's  Dig.  lib.  11,  cap.  52,  S.  25. 

But  in  waste  against  tenant  in  dower,  she  pleaded  a  grant  made  to  her 
by  the  heir,  to  hold  without  impeachment  of  waste,  and  averred  *v-^  H43 


460  OF  WASTE. 

(L)  Of  the  Pleadings  in  Action  of  Waste. 

had  assets  by  descent ;  and  the  opinion  was,  that  it  is  no  plea :  For  the 
statute  of  Gloucester  speaks  of  warranty  with  assets  to  bar  the  tail,  and 
not  of  grant  with  assets. 
Bro.  Waste,  pi.  76. 

In  action  of  waste  against  tenant  in  dower,  it  is  a  good  bar,  that  the 
baron  who  was  the  ancestor  of  the  plaintiff,  aliened  to  B,  who  assigned 
to  her  her  dower,  and  so  the  reversion  is  in  him,  and  not  in  the  plaintiff. 

39  E.  3,  33. 

In  waste  against  tenant  by  the  curtesy,  or  in  dower,  they  may  say, 

that  the  plaintiff  granted  the  reversion  to  M  N  to  whom  they  attorned. 

Bro.  Release,  pi.  40.  If  the  heir  granted  away  the  reversion,  and  tenant  attorned, 
the  action  failed  at  common  law.     2  Inst.  300. 

In  waste,  the  plaintiff  counted  upon  a  lease  for  years,  by  him  made  to 
the  defendant,  and  that  he  did  waste :  and  the  defendant  was  not  suf- 
fered to  say,  that  he  did  not  lease  for  term  of  years,  but  that  he  did  not 
lease  modo  et  forma,  &c. ;  for  if  he  leases  for  life  or  in  fee,  the  defendant 
may  plead  it,  and  traverse  the  count,  &c. 

Bro.  Negativa,  &c,  pi.  7. 

In  waste  against  A  for  tenements,  which  he  held  of  the  lease  of  E,  who 
held  them  for  term  of  life  of  the  lease  of  his  father,  the  defendant  said, 
that  he  had(a)  nothing  in  the  tenements  the  day  of  the  writ  purchased, 
nor  ever  after ;  but  E  was  and  is  tenant ;  judgment  of  the  writ,  and  non 
allocatur ;  upon  which  he  said,  that  E  was  tenant  the  day  of  the  writ 
purchased,  abseque  hoc,  that  he  ever  any  thing  had  of  the  lease  of  E, 
which  was  held  a  good  plea,  and  the  other  maintained  his  writ ;  quod 
nota,  and  yet  non-tenure  is  no  plea  in  waste ;  but  it  seems  that  this 
amounts  to  that  E  non  diinisit  modo  et  forma. 

Bro.  Waste,  pi.  35  ;  Bro.  Non-tenure,  pi.  55.     (a)  Bro.  Nbn-lenwe,  pi.  7. 

Waste  was  brought  against  tenant  for  life  for  digging  clay  and  gravel : 
the  defendant  justified,  by  command  of  the  plaintiff;  and  the  best  opinion 
was,  that  it  is  no  plea;  for  the  lessor  himself  cannot  justify  to  dig  it,  there- 
fore his  command  is  void ;  as  if  I  command  J  S  to  kill  my  father,  which 
he  does,  I  shall  have  appeal ;  and  in  formedon,  if  writ  of  estrepement  is 
delivered  to  the  tenant,  the  demandant '  cannot  command  him  to  cut  the 
trees,  but  estrepement  lies,  for  those  commands  are  void. 

Bro.  Waste,  pi.  108.  The  lessor  was  seised  in  fee,  but  in  his  lease  did  not  except 
the  gravel,  and  so  his  command,  during  the  lease,  is  not  good  ;  and,  by  Townshend, 
this  gravel  is  part  of  the  inheritance,  and  he  cannot  grant  his  inheritance  by  parol 
only  without  deed.     See  the  Year-Book,  2  H.  7,  14. 

But  where  W  brought  waste  against  the  defendant,  tenant  for  life,  by 
reason  of  a  remainder  to  him  limited  by  use ;  and  assigned  the  waste 
prosterncndo  horreum ;  the  defendant  pleaded  in  bar,  that  the  great 
timber  of  the  said  barn,  at  the  time  of  the  death  of  her  husband,  was  so 
rotten,  &c,  that  it  could  not  be  repaired ;  this  was  taken  to  be  a  good 
plea,  and  issue  taken  upon  the  matter. 

Mo.  54,  pi.  158,  Ward  and  Uxor  v.  Dettensam. 

The  plaintiff  made  a  lease  for  years  to  A,  and  before  the  expiration 
thereof  he  made  another  lease  of  the  same  lands  to  B,  the  defendant,  to 
begin  presently,  and  then  brought  an  action  of  waste  against  him  for  waste 
done  during  the  first  lease :  the  court  said,  that  in  such  case  it  would  not 
be  safe  for  him  to  plead  no  waste  done,  for  it  would  be  found  against  him, 


OF  WASTE.  461 

(M)  Of  the  Judgment  in  Actions  of  "Waste,  &c. 

and  if  ho  should  plead  the  special  matter,  as  aforesaid,  viz.,  that  the  first 
lease  was  in  being  at  the  time  of  the  waste  done,  after  the  expiration 
whereof  no  waste  was  done,  this  would  be  good,  if  the  second  lease  was 
not  by  indenture,  otherwise,  he  will  be  estopped  by  the  indenture  from 
showing  that  the  second  lease  had  another  beginning  than  the  indenture 
purports,  and  then  the  waste  will  charge  him.  And  if  defendant  pleads 
the  special  matter,  the  plaintiff  by  his  replication,  may  estop  him  to  plead 
any  other  beginning  of  the  term  than  the  letter  of  the  indenture  purports, 
and  it  will  be  no  departure,  because  it  strengthens  the  declaration. 

3  Le.  203,  pi.  256,  Thorp  v.  Wingfield. 

Ancient  demesne  is  no  good  plea  in  an  action  upon  the  statute  oi 
Gloucester,  for  it  is  only  a  personal  action,  and  the  statute  is  beneficial 
to  the  commonwealth. 

Ow.  24,  C.  B.  Owen's  case. 

In  waste  for  cutting  down  300  oaks,  the  defendant  pleaded  as  to  200 
of  them,  that  the  house  leased  was  ruinous,  &c,  and  that  he  cut  them 
down  to  repair  the  houses,  and  as  to  the  residue,  that  he  felled  and  keeps 
them  to  employ  about  the  reparations  tempore  opportune  And  all  the 
court,  without  argument,  held  it  no  plea  :  For  if  it  should  be  good,  every 
farmer  might  cut  down  all  the  trees  on  his  farm,  when  there  was  no 
manner  of  occasion  to  repair. 

Cro.  Eliz.  593,  pi.  33,  C.  B.,  George  v.  Stamfield. 

If  two  bring  an  action  of  waste,  the  release  of  one  is  a  good  bar 

against  the  other. 

1  Inst.  355  b.  If  the  action  by  two  be  brought  in  the  tennit,  a  release  of  the  one  is 
a  bar  to  both.  But  otherwise  it  is  the  tenet,  for  there  the  release  of  one  does  not  bar 
the  other.     Id.  ibid. 

If  there  be  tenant  for  life,  the  remainder  over  in  tail,  and  he  in  re- 
mainder release  to  the  tenant  all  his  right,  this  is  a  good  bar  against  the 
releasor  in  a  writ  of  waste ;  and  yet  neither  fee  nor  fee-tail  pass. 

Bro.  Waste,  pi.  145.  But  if  tenant  in  fee  release  to  his  tenant  for  life  all  his  right, 
yet  he  shall  have  action  of  waste. — So,  if  lessee  for  life  do  waste,  and  grant  over  his 
estate,  and  lessor  release  to  the  grantee ;  in  an  action  of  waste  against  the  lessee,  he 
shall  plead  the  release :  and  yet  he  has  nothing  in  the  land.  1  Inst.  2G9  b. — And  so 
in  waste  shall  tenant  in  dower,  or  by  the  curtesy,  in  the  like  case,  and  the  vouchee  and 
the  tenant  in  aprcecipe,  after  a  feoffment  made,  and  so  in  a  contra  formam  collaiionis. 
Id.  ibid. 

(M)  Of  the  Judgment  in  Actions  of  Waste,  and  what  shall  be  recovered  thereby. 

Statute  of  Gloucester,  6  E,  1,  c.  -5,  enacts,  That  he(a)  which  shall  be 
attainted  of  waste,  shall  lease(b)  the  thing  that  he  hath  wasted:  and  more- 
over shall(c)  recompense  thrice  so  much  as  the  waste  shall  be  taxed  at. 

(a)  If  one  joint-tenant  does  the  waste,  both  shall  be  attainted  of  the  waste,  &e. 
2  Inst.  303. — But  treble  damages  shall  be  recovered  against  him  that  did  the  waste  only. 

2  Inst.  302;   ||Cru.  Dig.  tit.  xviii.  c.  1,  \  63. || (b)  In  an  action  of  waste  against  a 

lessee  for  life,  for  waste  done  in  three  acres,  the  defendant  claims  fee  ;  whereupon  issue 
is  joined  ;  the  jury  find  against  the  defendant,  that  he  hath  but  an  estate  for  life  ;  and 
inquired  further  of  the  waste,  and  found  the  waste  done  in  one  acre  only.  The  plain- 
tiff cannot  have  judgment  for  the  whole  land,  in  respect  of  the  forfeiture  and  treble 
damages ;  for  that  judgment  is  not  according  to  this  act,  that  is  to  say,  of  the  place 
wasted,  and  treble  damages  in  respect  of  the  place  wasted ;  wherefore  he  had  judgment 
according  to  the  statute,  of  one  acre  and  treble  damages.  2  Inst.  305. {<:)  Where- 
soever the  common  law  gave  single  damages  against  any,  this  act  gives  treble,  unless 

there  be  any  special  provision  made  by  this  act  .     2  Inst.  306. This  statute  does 

not  bind  the  king.     Per  Coke,  Arg.  Mo.  321,  in  Englefields  case. 

2q2 


462  OF  WASTE. 

(M)  Of  the  Judgement  in  Actions  of  "Waste,  &c. 

And  for  ivaste  made  in  the  time  of  wardship,  it  shall  be  done  as  is 
contained  in  the  Great  Charter. 

If  the  guardian  suffers  a  stranger  to  cut  down  timber  trees,  or  to  prostrate  any  of 
the  houses,  and  according  to  his  name  of  guardian  doth  not  endeavour  to  keep  and  pre- 
serve the  inheritance  of  the  ward  in  his  custody  and  keeping,  nor  to  forbid  and  with- 
stand the  wrongdoer,  this  shall  be  taken  in  law  for  his  consent :  for  in  this  case  qui  rum 
prohibit  quod'proliibere  potest  assentire  videtur;  and  if  such  waste  and  destruction  be 
done  without  the  knowledge  of  the  guardian,  or  with  such  number  as  he  could  not  with- 
stand, then  ought  the  guardian  to  cause  an  assize  to  be  brought  against  such  wrong- 
doers, by  the  heir,  wherein  he  shall  recover  the  freehold  and  the  damages  for  such  wrong 
and  disherison.  So  note  a  diversity  between  the  interest  of  a  guardian  created  by  law : 
for  there  in  an  assize  the  heir  shall  recover  damages  ;  but  otherwise  it  is  in  case  of  a 
lease  for  years,  which  is  the  lessor's  own  act.     2  Inst.  305. 

And  ivhere  it  is  contained  in  the  Great  Charter,  that  he  which  did  the 

waste  during  the  custody  shall  lease  the  wardship ;  it  is  agreed  that  he. 

shall  recompense  the  heir  his  damages  for  the  waste,  if  so  be  that  the 

wardship  lost  do  not  amount  to  the  value  of  the  damages  before  the  age 

of  the  heir  of  the  same  wardship. 

The  committee  of  a  ward  did  waste,  and  after  tendered  marriage  to  the  heir,  and  he 
refused,  and  married  elsewhere.  The  waste  is  found  by  office.  The  question  was, 
Whether  the  committee  may  bring  forfeiture  of  marriage?  The  court  upon  advisement 
held,  that  the  committee  by  doing  waste  lost  only  the  ward  of  the  land,  and  not  of  the 
body,  by  the  express  words  of  this  statute.     Dy.  25  b,  pi.  163,  Anon. 

Upon  the  construction  of  the  statute  of  Gloucester,  some  question  has 
been  made,  Whether  in  this  mixed  action  the  place  wasted  is  the  prin- 
cipal or  the  damages?  And  in  divers  respects  the  one  is  more  principal 
than  the  other:  for  in  respect  of  the  antiquity  against  tenant  in  dower, 
and  tenant  by  the  curtesy,  the  damages  are  the  principal ;  and  therefore 
they  shall  be  sometimes  preferred,  viz.,  the  plaintiff  to  have  execution  of 
the  damages  before  the  place  wasted ;  but  in  respect  of  the  quality,  the 
reality  is  ever  preferred  before  the  personalty ;  and  therefore  in  waste, 
if  the  defendant  confess  the  action,  the  plaintiff  may  have  judgment  of 
the  land,  and  release  his  damages,  which  proves  the  realty  to  be  the 
principal ;  for  omne  majus  dignum  trahit  ad  se  minus. 

2  Inst.  307. 

If  two  coparceners  lease  land  for  life,  and  after  waste  committed  one 
dies,  the  aunt  and  niece  must  join  in  the  action ;  and  though  the  niece 
shall  recover  no  damages,  yet  she  shall  recover  the  place  wasted :  and  it 
seems  they  shall  hold  the  same  in  coparcenary. 

F.  N.  B.  60,  (R). 

In  waste  at  the  nisi  prius  waste  was  found  in  four  oaks  in  divers  parts 
in  a  wood :  and  it  was  doubted  if  he  shall  recover  the  wood  or  the  place 
wasted ;  and  at  last  it  was  awarded,  that  he  recover  the  place  wasted, 
and  his  treble  damages. 

Bro.  Waste,  pi.  24.  If  termor  of  a  wood  does  waste  in  one  corner  of  the  wood,  he 
shall  not  lose  all  the  wood,  per  Fineux,  C.  J.,  but  only  the  place  wasted.  Bro.  Waste, 
pi.  96. — But,  if  there  are  divers  plots  of  the  land  in  the  wood  in  divers  places,  if  the 
termor  does  waste  in  the  wood,  he  shall  lose  those  plots,  though  he  did  not  do  waste 
in  them  ;  for  those  are  parcel  of  the  wood :  And  this  seems  to  be  where  he  has  done 
waste  in  the  wood  sparsim  et  circumquaque  ;  and  this  was  said  by  Fineux  in  the  Read- 
ing of  Thecher.     Ibid. 

If  trees  growing  sparsim  in  a  close  are  cut,  in  an  action  of  waste  all 
the  close  shall  be  recovered. 

1  Inst.  54  a;  Brownl.  240,  S.  P.  Anon.,  and  the  treble  value  shall  be  levied  by  Ji. 
fa.  &c.     Id.  ibid. 


OF   WASTE.  463 

(M)  Of  the  Judgment  in  Actions  of  Waste,  &c. 

If  waste  be  done  in  divers  rooms  in  a  house,  the  rooms  shall  be  reco- 
vered in  an  action  of  waste,  and  not  all  the  house. 
Inst.  54. 

But  if  waste  be  done  in  a  house  sparsim  throughout  the  house,  all 
the  house  shall  be  recovered. 

2  Inst.  54. 

If  waste  be  done  in  the  hall  of  the  house,  yet  all  the  house  shall  not  be 
recovered,  though  some  say  that  the  house  has  its  denomination  from  the 
hall. 

2  Inst.  54.  In  ancient  time,  it  was  holden  by  some,  that  if  the  hall  was  wasted,  the 
whole  house  should  be  recovered  ;  for  that  in  those  days  the  hall  was  the  place  of  the 
greatest  resort  and  use,  insomuch,  that  the  whole  house  was  called  by  the  name  <  if 
the  hall,  as  Dale  Hall,  &c,  but  the  purview  of  the  statute  of  Gloucester  is,  that  he 
shall  lose  that  thing  that  he  hath  wasted.  2  Inst.  303,  304. — Noy,  attorney-general, 
in  Mr.  Atkins's  Reading,  held,  that  the  15  E.  3,  tit.  Waste,  8,  that  in  waste  of  the 
hall  the  house  shall  be  recovered,  was  good  law,  contrary  to  the  opinion  of  1  Inst.  54  a. 
And  he  cited  the  case  of  Lord  Abergavenny  v.  Sir  Richard  Southwell,  in  an  action 
of  waste,  for  waste  done  in  the  kitchen  and  larder  of  a  castle,  and  all  the  castle  was 
recovered,  because  a  castle  is  not  dividable,  and  so  adjudged.  11  Eliz.  See  D.  272  1> ; 
Marg.  pi.  33. 

If  a  man  brings  an  action  of  waste,  because  the  pales  of  a  park,  which 
encompass  the  park,  were  permitted  to  decay ;  but  it  is  not  averred  that 
there  were  any  deer  in  the  park,  or  that  thereby  the  deer  were  dispersed, 
and  in  this  action  the  plaintiff  recovers ;  he  shall  not  recover  all  the  land 
which  is  comprised  within  the  pale,  but  only  the  place  where  the  pale 
stood.  And  the  court  seemed  to  incline  to  it  in  a  writ  of  error  upon  such 
judgment  in  bank,  the  judgment  being  affirmed  in  the  King's  Bench  to 
recover  the  place  wasted. 

2  Roll.  Abr.  836. 

If  a  man  does  waste,  and  grants  his  estate  over,  yet  upon  an  action 
brought  against  him,  he  shall  lose  the  place  wasted ;  and  his  grantee, 
who  is  not  party  to  it,  shall  lose  his  interest.  And  therefore  it  is  a  good 
plea  for  the  grantee,  that  such  a  day  he  granted  his  estate  over,  before 
which  grant  no  waste  was  done :  and  in  an  action  against  the  grantee  it 
is  a  good  plea,  that  J  N  granted  it  to  him,  after  which  grant  no  waste 
was  done. 

Bro.  Waste,  pi.  33. 

In  waste  by  two  upon  a  lease  for  term  of  life,  one  was  summoned  and 
severed,  and  the  other  sued  forth,  and  assigned  the  waste  in  divers  things, 
as  in  cutting  willows ;  and  found  for  the  plaintiff,  and  damages  were 
taxed,  and  he  had  judgment  to  recover  the  moiety  of  the  damages,  and 
the  moiety  of  the  place  wasted,  and  as  to  the  willows  the  court  advised. 

Bro.  Waste,  pi.  115. 

If  a  man  does  waste  in  hedge-rows  which  surround  a  pasture,  nothing 
shall  be  recovered  but  the  place  wasted,  viz.,  the  circuit  of  the  root,  and 
not  the  entire  pasture. 

Bro.  Waste,  pi*  136. 

If  the  tenant  of  one  house  is  disseisor  of  the  next  house,  and  he  pulls 
down  both,  and  builds  them  into  one  new  one,  disseisee  shall  recover  all 
the  house. 

Vin.  Abr.  (V),  22,  509. 

When  waste  is  brought  in  the  tenuit,  damages  are  only  to  be  recovered. 
Rep.  44,  Blake's  case. 


464  OF   WASTE. 

(N)  In  what  Cases  in  general  Waste  may  be  restrained,  &c. 

If  lessee  for  years  or  life  grants  a  rent  out  of  the  land  so  leased,  and 
afterwards  commits  waste,  if  the  lord  recovers  the  place  wasted,  yet  the 
land  shall  be  charged. 

Brownl.  238,  Anon. 

{In  an  action  of  waste  against  tenant  for  years  for  converting  three 
closes  of  meadow  into  garden-ground,  if  the  jury  give  only  one  farthing 
damages  for  each  close,  the  court  will  give  the  defendant  leave  to  enter 
up  judgment  for  himself,  on  account  of  the  smallness  of  the  damages. 
2  Bos.  &  Pul.  86,  The  Governors,  &c.  of  Harrow  School  v.  Alderton.} 

(N)  In  what  Cases  in  general  Waste  may  be  restrained  by  Injunction  in  Equity. 

[A  court  of  equity  will  interpose  by  injunction  to  prevent  the  assertion 
of  a  doubtful  right  in  a  manner  productive  of  irreparable  injury.  There- 
fore, where  the  tenants  of  a  manor,  claiming  a  right  of  estovers,  cut  down 
a  great  quantity  of  timber  of  great  value,  their  title  being  doubtful,  the 
court  entertained  a  bill  at  the  suit  of  the  lord  of  the  manor  to  restrain  the 
assertion  of  it.  But  in  this,  and  indeed  in  all  cases  of  waste,  the  title  of 
the  plaintiff  must  be  set  forth  fully  {l\  and  particularly  in  his  bill,  else  the 
defendant  may  demur.  The  bill  must  likewise  be  supported  by  an  affida- 
vit of  the  waste  committed  or  {-}  threatened  ;  though  in  some  cases  the  in- 
junction has  been  granted  without  one.  But  the  court  will  not  restrain 
the  defendant  from  working  a  mine  already  opened,  even  where  there  is 
an  affidavit,(tf)  unless  it  appear  that  he  has  only  a  term  in  the  estate  for 
years  or  for  life,  and  that  the  reversion  be  in  the  plaintiff:  or,(5)  that  it 
be  a  breach  of  an  express  covenant,  or  an  undisputed  mischief. 

Stonor  v.  Strange,  Mitf.  Eq.  Rep.  123 ;  Whitelegg  v.  Whitelegg,  1  Bro.  Ch.  Rep. 
57  ;  P.  R.  C.  213.  {Vide  4  Ves.  J.  700,  Dench  v.  Bampton.  J1}  And  it  must  be 
positively  sworn  to,' or  the  injunction  will  not  be  granted.  6  Ves.  J.  784,  Da  vies  v. 
Leo.  Nor  will  it  be  granted  against  a  defendant  who  is  in  possession  and  claims  by 
an  adverse  title.  6  Ves.  J.  51,  Pillsworth  v.  Hopton  ;  8  Ves.  J.  89,  Smith  v.  Collyer. 
|2}  7  Ves.  J.  417  ;  11  Ves.  J.  54.1  (a)  Lowther  v.  Stamper,  3  Atk.  496.  (b)  Anon. 
Ambl.  209.  K  ' 

If  a  parson  commit  waste  upon  the  glebe,  an  injunction  will  be  granted 
on  the  application  of  the  patron.  So,  if  the  widow  of  the  late  incumbent 
commit  waste  during  the  vacancy. 

Bradly  v.  Stratchy,  Barnardist.  Ch.  Rep.  399 ;  Stratchy  v.  Francis,  2  Atk.  217 ; 
Hoskins  v.  Featherstone.  2  Bro.  Ch.  Rep.  552  ;]  { 1  Bos.  &  Pul.  105,  Jefferson  v.  The 
Bishop  v.  Durham.} 

||  The  lord  of  a  manor  is  now  held  to  be  entitled  to  an  injunction  and 
account,  in  respect  of  waste  committed  by  a  copy-holder. 

Richards  v.  Noble,  3  Meriv.  673 ;  seel  vide  Dench  v.  Bampton,  4  Ves.  700.  || 

If  a  tenant  for  life  plant  woad  on  the  land,  which  is  of  so  poisonous  a 
quality  that  it  destroys  the  principles  of  vegetation,  without  an  express 
power  in  his  lease,  where  it  is  usual  to  have  such  powers,  it  may  be  con- 
sidered as  waste,  and  the  Court  of  Chancery  may  grant  an  injunction. 

MS.  Rep.  Marquis  of  Powis  v.  Dorall,  Cane. 

If  there  be  lessee  for  life,  remainder  for  life,  the  reversion  or  remainder 
in  fee,  and  the  lessee  in  possession  waste  the  lands ;  though  he  is  not 
punishable  for  waste  by  the  common  law,(<?)  by  reason  of  the  mesne  re- 
mainder for  life,  yet  he  shall  be  restrained  in  Chancery,  for  this  is  a  par- 
ticular mischief. 

Moor,  554,  S.  P.  ;  I  Vern.  23,  S.  P. ;  [3  Atk.  94,  210,  723,  S.  P.  :J    {G  Ves.  J.  787, 


OF   WASTE.  465 

(N)  Where  Waste  may  be  restrained  by  Injunction. 

Davies  v.  Leo.}  (c)  That  such  lessee  is  not  punishable  by  the  common  law,  during 
the  continuance  of  the  remainder,  though  after  its  determination  he  is.  Vide  1  Inst 
54 ;  2  Inst,  301. 

But  if  such  lessee  has  in  his  lease  an  express  clause  of  without  im- 
peachment of  waste,  he  shall  not  be  enjoined  in  equity. 

1  Vera.  23.  Although  a  court  of  equity  will  not  assist  a  forfeiture,  yet  the  tenant  in 
possession  shall  be  restrained  in  equity  fvom  committing  waste  in  all  cases  in  which 
waste  is  punishable  by  law  ;  and  fortius  purpose  an  injunction  will  be  granted  before 
the  bill  is  filed.  Also,  iin  injunction  will  be  granted  to  stay  waste  in  behalf  of  an  infant 
in  ventre  sa  mere.  Equity  will  likewise  (in  some  particular  cases)  restrain  the  tenant  from 
committing  waste,  where  it  is  dispunishable  by  law,  either  by  the  nature  of  his  estate, 
or  by  express  grant  of  without  impeachment  of  waste:  but  where,  by  the  agreement  of 
the  parties,  the  lease  is  made  without  impeachment  of  wade,  equity  will  not  restrain  the 
lessee  from  cutting  timber,  ploughing,  opening  mines,  &c,  though  such  lessee  shall  be 
restrained  from  pulling  down  houses,  defacing  seats,  &c.  Hard.  96  ;  1  Chan.  Rep.  13. 
14,  100,  110 ;  2  Vera.  392,  711 ;  1  Salk.  161 ;  2  Chan.  Ca.  32;  2  Chan.  Rep.  94. 

[A  tenant  for  years,  remainder  to  B  for  life,  remainder  to  C  in  fee.  A 
is  doing  waste.  B,  though  he  cannot  bring  waste,  not  having  the  inherit- 
ance, is  yet  entitled  to  an  injunction.  But  if  the  waste  be  of  a  trivial 
nature,(tf)  and  a  fortiori  if  it  be  a  meliorating  waste,  as  by  building  on 
the  premises,  (see  Co.  Litt.  53,)  the  court  will  not  enjoin ;  nor,  if  the  re- 
versioner or  remainder-man  in  fee  be  not  made  a  party,  who  possibly 
may  approve  of  the  waste. 

Roswell's  case,  1  Roll.  Abe.  377.  (a)  Mollineux  v.  Powell,  Pasch.  1730,  per  Ld. 
King ;  3  P.  Wms.  203,  note  F  ;]   ||  Barry  v.  Barry,  1  Jac.  &  Walk.  651,  acc.\\ 

||  In  some  cases,  the  Court  of  Chancery  will  grant  an  injunction  against 
mere  permissive  waste. 

Caldwell  v.  Baylis,  2  Meriv.  408. 

Where  a  tenant  defending  an  ejectment  at  suit  of  his  landlord  makes 
default  at  the  trial,  and  makes  use  of  the  interval  to  commit  wilful  waste, 
the  court  will  grant  an  injunction  against  him  in  vacation ;  but  it  was 
refused  where  no  ejectment  was  brought. 

Lathrop  v.  Marsh,  5  Ves.  201  ;||  jSKinsler  v.  Clarke,  2  Hill's  Ch.  618.£f 

If  A  is  tenant  for  life,  remainder  to  B  for  life,  remainder  to  the  first 
and  other  sons  of  B  in  tail-male,  remainder  to  B  in  tail,  &c,  and  B  (be- 
fore the  birth  of  any  son)  brings  a  bill  against  A  to  stay  waste,  and  A 
demurs  to  this  bill  because  the  plaintiff  had  no  right  to  the  trees,  and  no 
one  that  had  the  inheritance  was  party ;  yet  the  demurrer  will  be  over- 
ruled, because  waste  is  to  the  damage  of  the  public,  and  B  is  to  take  care 
of  the  inheritance  for  his  children,  if  he  has  any,  and  has  a  particular 
interest  himself,  in  case  he  comes  to  the  estate. 

Dayrel  v.  Champness,  1  Eq.  Cas.  Abr.  400. 

On  a  motion  for  an  injunction  to  stay  a  jointress,  who  was  tenant  in  tail 
after  possibility,  &c,  from  committing  waste,  it  was  urged,  that  she  being 
jointress  within  the  11th  of  H.  7,  ought  in  equity  to  be  restrained  from 
cutting  timber,  that  being  part  of  the  inheritance,  which,  by  the  statute, 
she  is  restrained  from  aliening ;  and  the  court  granted  an  injunction 
against  wilful  waste  in  the  site  of  the  house,  and  pulling  down  houses. 

1  Eq.  Cas.  Abr.  400,  Cook  v.  Whaley;  [Pr.  Ch.  454,  S.  C] 

[On  a  bill  to  restrain  a  jointress  without  impeachment  of  waste  from  com- 
mitting waste,  a  perpetual  injunction  was  granted  to  restrain  her  and  her 
agent  from  ploughing  the  pasture  and  meadow-lands  of  her  jointure. 

Bassett  v.  Bassett,  Finch's  Rep.  190.1 

Vol.  X.— 50 


466  OF  WASTE. 

(N)  Where  "Waste  may  be  restrained  by  Injunction. 

But  where  a  jointress  had  a  covenant  that  her  jointure  should  be  of sucH 
a  yearly  value,  which  fell  short,  though  her  estate  was  not  without  impeach- 
ment of  waste;  yet  the  court  would  not  prohibit  her  committing  waste, 
so  far  as  to  make  up  the  defect  of  her  jointure.  But  quaere  if  an  action 
of  waste  be  brought  against  her,  if  Chancery  will  enjoin  the  action. 

Finch's  Eep.  190,  Carew  v.  Carew. 

It  seems  to  be  a  general  principle,  however,  that — 

Tenant  in  tail,  after  possibility,  shall  be  restrained  in  equity  from  do- 
ing waste  by  injunction,  &c,  because  the  court  will  never  see  a  man  dis- 
inherited ;  per  Chance,  Finch.  And  he  took  a  diversity  where  a  man  is 
not  punishable  for  waste,  and  where  he  hath  a  right  to  do  waste  ;  and 
cited  Uvedale's  case,  24  Car.  1,  ruled  by  the  Lord  Rolle  to  warrant  that 

distinction. 

2  Show.  09,  pi.  53,  Abraham  v.  Bubb.  A  woman,  tenant  in  tail,  after  possibility 
of  issue  extinct,  was  restrained  from  committing  waste  in  pulling  down  houses,  or 
cutting  down  trees,  which  stood  in  defence  of  the  house,  and  fruit  trees  in  the  garden; 
but  for  some  turrets  of  trees,  which  stood  a  land's  length  or  two  from  the  court,  would 
grant  no  injunction,  because  she  had  by  law  power  to  commit  waste :  and  yet  she  was 
nevertheless  restrained  in  the  particulars  aforesaid,  because  they  seemed  to  be  mali- 
cious, 2  Freem.  278,  279,  pi.  349. 

A  devised  lands,  on  which  timber  was  growing,  to  his  wife  for  life,  re- 
mainder to  B  in  fee,  paying  several  legacies  within  a  limited  time,  and 
in  default  of  payment  the  remainder  to  C,  he  paying  the  legacies ;  and 
on  a  bill  brought  by  B  the  court  gave  him  leave  to  cut  timber  for  the 
payment  of  the  legacies,  though  it  was  opposed  by  the  tenant  for  life 
and  the  devisee  over,  he  making  satisfaction  to  the  widow  for  breaking 
the  ground  by  carriage,  waste,  &c. 

2  Vera.  152,  Claxton  v.  Claxton. 

So,  where  a  man  created  a  term  for  500  years,  in  trust  for  himself  and 
his  wife  for  life,  remainder  to  trustees  for  payment  of  debts  and  annui- 
ties ;  and  by  will  devised  the  reversion  thereof  to  A  for  life,  without  im- 
peachment of  waste,  remainder  to  his  first  and  other  sons  in  tail-male, 
with  remainder  over ;  A  being  in  want,  the  court  gave  him  leave  to  cut 
down  timber  to  the  value  of  5001.  though  the  debts  and  annuities  were 
not  paid ;  the  trustees  having  no  power  to  sell  the  timber,  the  debts  being 
like  to  have  a  long  continuance,  and  there  being  a  great  deal  of  decay- 
ing timber  on  the  estate. 

2  Vern.  218,  Assimwall  v.  Leigh  et  al. 

[A  tenant  for  life,  remainder  to  B  his  son  in  tail,  remainder  to  C  for  life, 
with  remainders  over.  A  files  a  bill  in  his  own  name  and  that  of  B  his 
son,  then  an  infant,  stating  (inter  alia)  that  there  were  great  quantities 
of  timber  upon  the  estate  going  to  decay,  and  praying  that  he  (A)  might  be 
empowered  to  cut  down  and  sell  such  timber  as  was  decaying  or  at  its  full 
growth,  for  the  benefit  of  B.  The  defendants  by  their  answers  admitted 
that  there  were  several  trees  in  a  state  of  decay,  and  that  it  would  be  for 
the  benefit  of  all  persons  interested  in  the  premises  to  have  them  cut  down. 
It  was  decreed,  that  the  Master  should  inquire  what  timber  was  standing 
upon  the  estate  that  was  in  a  decaying  condition,  which  was  neither  a 
shelter  nor  ornament  to  the  seat,  and  that  such  decaying  timber  as  the 
Master  should  direct  should  be  cut  down  and  sold,  and  the  produce  of 
the  sale  invested,  upon  proper  security,  in  the  names  of  trustees  for  the 
benefit  of  B,  the  infant,  to  be  paid  him  when  he  came  to  age. 

Bowicke  v.  Whitfield,  3  Cox's  P.  Wms.  2GG.     In  this  case  it  is  to  be  observed,  the 


OF    WASTE.  467 

(N)  Where  Waste  may  be  restrained  by  Injunction. 

tenant  for  life  was  a  co-plaintiff  with  the  remainder-man  in  tail,  and  claimed  no 
benefit  from  the  sale  of  the  timber.  But  supposing  a  contract  to  be  entered  into  be- 
tween the  tenant  for  life  and  remainder-man  to  share  in  the  profits  of  the  sale,  (which 
seems  not  to  be  unreasonable,  for  no  timber  can  be  cut  without  the  consent  of  the 
tenant  for  life,)  could  the  court  in  that  case  authorize  the  cutting  down  of  the  timber? 
For  if  the  remainder-man  in  tail  were  to  die  before  his  estate  vested  in  possession, 
the  rights  of  the  person  next  in  remainder  would  be  varied.  Where,  therefore,  the 
court  had  authorized  the  cutting  down  of  timber  on  the  estate  of  an  infant  tenant  in 
'  tail  in  remainder,  and  the  tenant  for  life  claimed  a  life-estate  in  the  money  produced  by 
the  sale,  Lord  Commissioner  Eyre  said,  he  thought  the  court  had  done  wrong  in  doing 
for  the  tenant  in  tail  what  he  could  not  do  for  himself,  and  the  money  was  ordered  to 
be  invested  in  the  funds,  that  when  the  infant  came  of  age,  the  claims  of  the  parties 
might  be  discussed  in  a  bill.  Mildmay  v.  Mildmay,  4  Bro.  Ch.  R.  7G.  It  is,  however, 
a  rule,  that  the  money  raised  by  the  sale  of  timber  cut  down  by  tenant  for  life,  impeach- 
able of  waste,  shall  be  paid  to  him  who  has  the  first  estate  of  inheritance,  whether 
in  fee  or  in  tail ;  and  this,  though  there  may  be  several  intermediate  remainders  that 
;may  arise.  Lee  v.  Alston,  3  Bro.  Ch.  R.  37.  But  yet,  where  the  tenant  for  life  has 
also  in  himself  the  next  existent  estate  of  inheritance,  subject  to  intermediate  contin- 
gent remainders,  he  shall  not  take  advantage  of  his  own  wrong  in  cutting  down 
i  timber,  but  the  court  will  preserve  it  for  the  benefit  of  the  contingent  remainder-men. 
Williams  v.  Duke  of  Bolton,  Feb.  24,  1784,  3  Cox's  P.  Wms.  268,  note  (1). 

In  general,  an  injunction  will  not  issue  where  the  persons  applying  for 
:it  are  tenants  in  common  with  the  person  in  possession;  for  he  has  an 
,  equal  title  to  the  possession  with  them,  and  they  may  have  a  partition 
•  against  him.  However,  where  it  appeared  that  the  person  in  possession 
bras  insolvent,  and  could  not  pay  the  plaintiffs  their  share  of  the  money 
-{produced  by  the  sale,  Lord  Chancellor  granted  the  injunction. 
Smallman  v.  Onions,  3  Bro.  Ch.  R.  021.] 

||  The  general  rule  is,  that  the  court  will  not  grant  an  injunction  against 
a  tenant  in  common,  to  stay  mere  equitable  waste,  though  malicious  de- 
struction may  be  a  ground  for  an  injunction ;  and  where  one  tenant  in 
1  common  becomes  tenant  of  the  other  moiety,  the  court  will  restrain  him 
from  ploughing  up  meadow  or  cutting  timber ;  since,  by  becoming  tenant, 
'he  engages,  as  to  one  moiety,  to  treat  the  land  as  a  tenant  ought  to 
treat  it. 
Hole  v.  Thomas,  7  Ves.  589  ;  Twort  v.  Twort,  16  Ves.  130;  sed  vide  8  Term  R.  145.  || 

13  In  Pennsylvania,  the  writ  of  estrepement  of  waste  does  not  lie  of 
:  course,  but  must  be  grounded  on  an  affidavit  of  actual  waste,  done  or 
permitted. 

Dickinson  v.  Nicholson,  2  Yeates,  281. 

Chancery  only  interferes  to  prevent  future  waste,  except  where  there 
are  some  special  grounds  for  equitable  interference  as  to  waste  already 
committed. 

Winship  v.  Pitts,  3  Paige,  259. 

On  a  bill  with  proper  allegations  filed,  the  chancellor  "will  restrain 
waste. 

Downing  v.  Palmateer,  1  Monr.  65.  £/ 

In  what  Cases  Waste  may  be  restrained  in  Equity,  notwithstanding  the  Words  without 
Impeachment  of  Waste,  be  contained  in  the  Lease,  &c. 

It  is  true  that  a  lease  ivithout  impeachment  of  waste  takes  off  all  re- 
straint from  the  tenant  of  doing  it ;  and  he  may  in  such  case  pull  up,  or 
cut  down  wood  or  timber,  or  dig  mines,  &c,  at  his  pleasure,  and  not  be 
liable  to  any  action. 

Plowd.  135.     [At  common  law,  the  clause,  without  impeachment  of  waste,  only 


468  OF  WASTE. 

(N)  Where  Waste  may  be  restrained  by  Injunction 

exempted  the  tenant  for  life  from  the  penalty  of  the  statute,  the  recovery  of  treble 
value,  and  the  place  wasted,  not  giving  the  property  of  the  thing  wasted.  But  in 
Lewis  Bowie's  case,  11  Co.  79,  it  was  determined,  that  these  words  also  gave  the 
property;  the  necessary  consequence  of  which  was,  that  in  general,  unless  on  particu- 
lar circumstances,  he  was  not  to  be  restrained  in  equity;  for  that  would  be  to  deter- 
mine that  lie  should  not  make  use  of  that  property  which  the  law  allowed  him.  But 
afterwards  several  instances  were  considered,  in  which  this  very  large  power  might 
be  exercised  contrary  to  conscience  and  in  an  unreasonable  manner  by  the  tenant  for 
life;  as  where  his  act  was  to  the  destruction  of  the  thing  settled;  which  was  the 
ground  of  Lord  Bernard's  case,  the  strongest  that  could  happen :  yet  that  was  not  an 
original  case  without  precedent  or  judicial  opinion  to  support  it,  as  appears  from  a 
case  5  Jac.  1,  (before  Lewis  Bowie's  case,)  which  probably  occurred  then,  though  the 
determination  there  did  not  operate  upon  it.     Per  Lord  Ilardwicke,  1  Ves.  2G5.] 

But  though  the  tenant  may  let  the  houses  be  out  of  repair,  and  cut  down 
trees,  and  convert  them  to  his  own  use :  yet,  where  a  tenant  in  fee-simple 
made  a  lease  for  years  without  impeachment  of  waste,  it  was  adjudged, 
that  the  lessor  had  still  such  a  property,  that  if  he  cut  and  carried  away 
the  trees,  the  lessee  could  only  recover  damages  in  an  action  for  the 
trespass,  and  not  for  the  trees  :  Also  it  hath  been  held,  that  tenant 
for  life,  without  impeachment  of  ivaste,  if  he  cuts  down  trees,  is  only  ex- 
empt from  an  action  of  waste,  &c. 

11  Hep.  82 ;  1  Inst.  220 ;  2  lust.  14G  ;  G  Rep.  G3  :  Dyer,  184. 

And  if  the  words  are,  To  hold  without  impeachment  of  any  writ  or 
action  of  ivaste,  the  lessor  may  seize  the  trees,  if  the  lessee  cuts  them 
down,  or  bring  trover  for  them. 

Wood's  Inst.  74. 

In  many  cases,  likewise,  the  Court  of  Chancery  will  restrain  waste, 
though  the  lease,  &c,  be  made  without  impeachment  of  ivaste.     For, 

The  clause  of  without  impeachment  of  ivaste,  never  was  extended  to 
allow  the  very  destruction  of  the  estate  itself,  but  only  to  excuse  for 
permissive  waste,  and  therefore  such  a  clause  would  not  give  leave  to  fell 
or  cut  down  trees  ornamental  or  sheltering  of  a  house,  much  less  to  de- 
stroy or  demolish  a  house  itself.     Thus — 

A  bill  was  brought  by  a  remainder-man  to  restrain  the  tenant  for  life, 
without  impeachment  of  waste,  from  cutting  timber  in  Westwood  Park 
improper  to  be  felled ;  and  Lord  Chancellor  granted  the  injunction  to 
restrain  the  defendant  from  cutting  timber,  which  served  for  shelter  or 
ornament  to  the  house,  or  which  grew  Sn  lines,  avenues,  or  ridings  for 
ornament,  and  also  any  other  timber  in  the  park,  which  was  not  of 
proper  growth  to  be  felled. — And  his  lordship  in  this  case  declared,  that 
courts  of  equity  had  in  this  respect  established  rules  much  more  re- 
strictive than  those  of  the  common  law ;  which  gave  tenant  for  life, 
without  impeachment  of  waste,  as  large  a  power  over  the  timber  as 
tenant  in  fee-simple,  that  timber  might  be  had  for  public  use. 

MS.  Hep.  in  Chanc.  1744,  Packington  v.  Packington ;  [3  Atk.  215,  S.  C.  In  this 
case  the  plaintiff  alleged,  that  the  defendant,  Sir  II.  Packington,  had  cut  down  a  great 
number  of  trees,  and  had  threatened  to  cut  down  and  destroy  them  all:  that  Sir  H. 
Packington's  agent  had  agreed  for  the  sale  of  2000  trees,  and  that  in  consequence 
thereof  some  trees  had  been  actually  felled.  It  does  not  appear  from  the  allegations  of 
the  plaintiff  upon  moving  for  the  injunction,  whether  the  agent  had  admitted  this  fact. 
Sir  II.  Packington's  answer  was  not  come  in.  Lord  Ilardwicke  granted  the  injunction 
to  restrain  Sir  II.  Packington,  his  agents,  servants,  and  workmen,  from  cutting  down 
timber  trees  growing  in  Westwood  Park  aforesaid,  which  were  for  the  shelter  or  orna- 
ment of  the  said  mansion-house  there ;  and  also  any  timber  trees,  which  were  plauted 
or  grew  in  any  lines,  avenues,  or  ridings  for  the  ornament  of  the  said  park,  until  the  said 


OF   WASTE.  469 

(X)  Where  Waste  ma}'  be  restrained  by  Injunction. 

Sir  II  Packington  should  fully  answer  the  plaintiff's  bill.  Reg.  Lib.  B.  1744,  foL  325. 
'  j6  Ves.  J.  41(J,  Lord  Tamworth  v.  Lord  Ferrers  ;  8  Ves.  J.  70,  Williams  v.  M'Naniara. 
The  cutting  of  clumps  of  firs  planted  for  ornament  on  a  common  at  the  distance  of 
two  miles  from  the  house  will  in  like  manner  be  restrained.  6  Ves.  J.  197,  Marquis  of 
Downshire  v.  Lady  Sandys.}     jj See  Coffin  v.  Coffin,  Jacob,  70,  and  G  Madd.  17. || 

Likewise,  where  A  upon  his  marriage  settled  lands  to  the  use  of  himself 
and  M  his  wife,  and  the  heirs  of  their  two  bodies ;  afterwards  A  died  with- 
out issue,  M  married  D  the  defendant,  being  then  tenant  in  tail  after  pos- 
sibility of  issue  extinct:  and  M  and  D  having  felled  some  trees  in  a  grove 
Ithat  grew  near,  and  was  an  ornament  to  the  mansion-house,  and  having 
an  intention  to  fell  the  rest;  the  plaintiff,  to  whom  the  lands  belonged  in 
remainder,  brought  his  bill  to  restrain  M  from  felling  those  trees,  and  to 
have  an  injunction  to  stay  the  committing  of  waste.  This  cause  was  re- 
ferred, and  if  the  parties  could  not  agree,  then  to  be  set  down  again. 
,But  Lord  Chancellor  Nottingham  discovered  his  inclination  fortiter  for 
granting  an  injunction. 

2  Freem.  Rep.  53,  Abraham  v.  Bubb.  ||  See  S.  C,  2  Show.  69  ;  2  Eq.  Ca.  Ab.  757, 
and  Lord  Nottingham's  MSS.  2  Swanst.  R.  172.  This  case  was  decided  by  Lord 
Nottingham  on  the  reasons  of  Skelton  v.  Skelton,  (see  2  Swanst.  170,  noia ;)  and  ac- 
cording to  the  report  in  2  Freem.  his  lordship  gives  again  most  of  the  reasons  and 
cases  which  are  stated  in  his  MSS.  of  the  decision  of  Skelton  v.  Skelton ;  and  see 
3  Swanst.  493,  nofd.\\  His  lordship  said,  if  there  be  tenant  for  life  without  impeach- 
ment of  waste,  and  he  goes  to  pull  down  the  houses,  Sec,  to  do  waste  maliciously,  this 
court  will  restrain,  although  he  hath  express  power  by  the  act  of  the  party  to  commit 
waste  ;  for  this  court  will  moderate  the  exercise  of  that  power,  and  will  restrain 
extravagant  humorous  waste,  because  it  is  pro  bono  publico  to  restrain  it ;  and  he  said 
he  never  knew  an  injunction  denied  to  stay  the  pulling  down  of  houses  by  tenant  for 
life  without  impeachment  of  waste,  unless  it  were  to  Serjeant  Peck  in  Lord  Oxford's 
case,  ||  cited  Cro.  Eliz.  777,  ||  and  said,  he  believed  he  should  never  see  this  court  deny 
it  again.    Freem.  54. 

So,  where  a  lease  was  made  by  a  bishop  for  twenty-one  years,  without 
impeachment  of  waste,  of  land  that  had  many  trees  upon  it,  and  the  tenant 
cut  down  none  of  the  trees  till  about  half  a  year  before  the  expiration  of 
his  term,  and  then  began  to  fell  the  trees ;  the  court  granted  an  injunc- 
tion ;  for  though  he  might  have  felled  trees  every  year  from  the  beginning 
of  his  term,  and  then  they  would  have  been  growing  up  again  gradually, 
yet  it  is  unreasonable  that  he  should  let  them  grow  till  towards  the  end 
of  his  term,  and  then  sweep  them  all  away :  for  though  he  had  power  to 
commit  waste,  yet  this  court  will  model  the  exercise  of  that  power. 

2  Freem.  55  ;  |{  and  see  the  report  from  Lord  Nottingham's  MSS.,  2  Swanst.  R.  172, 
Lady  Evelyn's  case  cited.     Ibid. 

So,  in  the  case  of  tenant  for  life,  remainder  to  the  first  son  for  life 
without  impeachment  of  waste,  with  remainder  over,  the  first  son,  by  the 
leave  of  the  lessee  of  tenant  for  life,  comes  upon  the  land,  and  fells  the 
trees,  although  he  could  not  in  that  case  be  punished  by  an  action  of 
waste,  yet  he  was  enjoined  by  this  court. 

2  Freeem.  55  ;  ijand  see  3  Swanst.  G99.|| 

Likewise,  where  A  on  the  marriage  of  his  eldest  son,  in  consideration 
of  10,000/.  portion,  settled  (inter  alia)  Raby  Castle  on  himself  for  life, 
without  impeachment  of  ivaste,  remainder  to  his  son  for  life,  and  to  his 
first  and  other  sons  in  tail-male;  afterwards,  having  taken  some  dis- 
pleasure to  his  son,  he  got  200  workmen  together,  and  of  a  sudden 
stripped  the  castle  of  the  lead,  iron,  glass,  doors,  and  boards,  &c,  to  the 
value  of  3000/.  ;  the  court,  on  the  son's  filing  his  bill,  granted  an  injunc- 

2R 


470  OF   WASTE. 

(X)  Where  Waste  may  be  restrained  by  Injunction. 

tion  to  stay  the  committing  of  waste  in  pulling  down  the  castle,  and  upon 
hearing  the  cause,  decreed  not  only  the  injunction  to  continue,  but  that 
the  castle  should  be  repaired,  and  put  in  the  same  condition  it  was  in; 
and  for  that  purpose  a  commission  was  to  issue  to  ascertain  what  ought 
to  be  repaired,  and  a  master  to  see  it  done  at  the  charge  and  expense  of 
the  father,  and  the  son  to  have  his  costs. 

2  Yern.  738,  739  ;  1  Salk.  101,  S.  C,  Vane  v.  Lord  Bernard. 

A  bishop  of  London,  in  Edward  the  Sixth's  time,  made  a  long  lease, 
of  which  there  were  about  twenty  years  to  come,  and  the  lease  was  made 
without  impeachment  of  waste;  W,  in  whom  by  several  mesne  assign- 
ments the  remainder  of  this  lease  was  vested,  articled  with  brick-makers, 
that  they  might  dig  and  carry  away  the  soil  of  twenty  acres  six  feet  deep, 
provided  they  did  not  dig  above  two  acres  in  the  year,  and  levelled  those 
acres  before  they  dug  up  others.  The  (now)  bishop  of  London  having 
the  inheritance  in  right  of  his  bishopric,  brought  a  bill  to  enjoin  the  dig- 
ging of  the  ground  for  brick:  Lord  Chancellor  Parker  directed,  that  W 
might  carry  off  the  brick  he  had  dug,  but  ordered  an  injunction  to  stop 
further  digging. 

1  P.  Wms,  527,  Bishop  of  London  v.  Webb.  His  lordship  said,  that  before  the 
statute  of  Gloucester,  waste  did  not  lie  against  lessee  for  years,  and  the  being  without 
■impeachment  of  waste  seems  originally  intended  only  to  mean  that  the  party  should 
not  be  punishable  by  that  statute,  and  not  to  give  a  property  in  the  trees  or  materials 
of  a  house  pulled  down  by  lessee  for  years  sans  ivastc  ;  but  he  said,  that  the  resolutions 
having  established  the  law  to  be  otherwise,  he  would  not  shake  it,  much  less  carry  it 
further,  and  that  he  took  this  case,  the  Bishop  of  London  v.  Webb,  to  be  within  the 
reason  of  Lord  Bernard's  case  ;  where,  as  he  was  not  permitted  to  destroy  the  castle 
to  the  prejudice  of  the  remainder-man,  so  neither  shall  the  lessee  in  the  present  case 
destroy  this  field  against  the  bishop,  who  has  the  reversion  in  fee,  to  the  ruin  of  the 
inheritance  of  the  church.     Ibid.  528,  529. 

[A  very  considerable  real  estate  was  limited  to  Mrs.  Rolt,  who  after- 
wards married  the  defendant,  the  Lord  Somerville,  for  life,  without  im- 
peachment of  waste,  remainder  to  the  plaintiff  Rolt  for  life,  without  im- 
peachment of  waste,  with  several  remainders  over.  The  defendant,  the 
Lord  Somerville,  to  make  the  most  of  this  estate  during  the  life  of  his  wife, 
pulled  down  several  houses  and  out-buildings  upon  the  estate,  and  sold 
them,  and  also  took  up  lead  water-pipes,  that  were  laid  for  the  conveyance 
of  water  to  the  capital  messuage,  and  disposed  thereof;  and  he  also  cut 
down  several  groves  of  trees  that  were  planted  for  shelter  or  ornament  of 
the  capital  messuage.  Upon  this  a  bill  was  brought  by  the  plaintiff  to 
compel  the  defendant  to  account  for  the  money  raised  by  the  particulars 
before  mentioned,  and  to  put  the  estate  in  the  same  plight  and  condition  it 
was  in  before.  The  defendant  demurred,  and  insisted  that  this  waste  was 
committed  by  tenant  for  life  without  impeachment  of  waste,  and  therefore 
he  was  not  liable  to  be  called  to  an  account  for  what  he  had  done  either  at 
law  or  in  equity;  and  if  he  was,  yet  the  plaintiff  could  not  call  him  to  an 
account,  because  he  was  not  a  remainder-man  of  the  inheritance.  Lord 
Hardwicke, — Though  an  action  of  waste  will  not  lie  at  law  for  what  is 
done  to  houses,  or  plantations  for  ornament  or  convenience  by  tenant  for 
life,  without  impeachment  of  waste,  yet  this  court  hath  set  up  a  superior 
equity,  and  will  restrain  the  doing  of  such  things  on  the  estate.  In  Lord 
Bernard's  case  the  court  restrained  him  from  going  on,  and  ordered  the 
estate  to  be  put  in  the  same  condition.  In  Sir  Blundel  Charleton's  case, 
the  Master  of  the  llolls  decreed,  that  no  trees  should  be  cut  down  that 


OF   WASTE.  471 

(X)  Where  Waste  may  be  restrained  by  Injunction. 

were  for  the  ornament  of  the  park;  but  Lord  Chancellor  King  reversed 
that,  and  extended  it  only  to  trees  that  were  planted  in  rows.  My  only 
doubt  is,  as  to  the  trees  that  have  been  cut  down  ;  for  if  this  bill  had  been 
brought  before  such  trees  (a)  had  been  cut  down  as  were  fur  the  ornament 
or  shelter  of  the  estate,  this  court  would  have  interposed :  but  here  the 
mischief  is  done,  and  it  is  impossible  to  restore  it  to  the  same  condition  as 
to  the  plantations,  and  therefore  it  can  lie  in  satisfaction  only ;  and  I  can- 
not say  the  plaintiff  is  entitled  to  a  satisfaction  for  the  timber,  which  is  a 
damage  to  the  inheritance ;  yet,  as  to  pulling  down  the  houses  and  build- 
ings, and  taking  up  the  lead  pipes,  that  may  be  restored,  or  put  in  as  good 
condition  again.  In  my  Lord  Bernard's  case,  there  were  directions  for  an 
issue  at  law  to  charge  his  assets  with  the  value  of  the  damages,  he  not 
having  performed  the  decree  in  his  lifetime.  The  demurrer  was  allowed 
as  to  satisfaction  on  account  of  the  timber,  but  overruled  as  to  the  rest. 

Rolt  v.  Lord  Sommerville,  2  Eq.  Ca.  Abr.  tit.  Waste,  (A),  pi.  8.  {a)  Even  where  a 
son,  tenant  in  tail,  brought  a  bill  against  his  father  tenant  for  life,  without  impeach- 
ment of  waste,  charging  waste  in  pulling  up  a  deal  floor,  removing  some  young  oaks, 
and  turning  meadow  into  plough  land,  but  did  not  apply  for  an  injunction,  the  bill 
was  dismissed.  Piers  v.  Piers,  1  Ves.  521.  For  the  ground  of  going  into  a  court  of 
equity  is  to  stay  the  waste,  not  by  way  of  satisfaction  for  the  damages,  but  by  way  of 
prevention  of  the  wrong.  The  account  is  only  incident  to  the  preventive  jurisdiction 
by  injunction,  and  is  given  upon  the  maxim  of  preventing  a  multiplicity  of  suits,  that 
the  party  may  not  be  obliged  to  proceed  both  at  law  and  in  equity.  The  court  there- 
fore have  refused  to  entertain  a  bill  merely  for  satisfaction  for  timber  cut  down  after 
the  estate  of  the  tenant  who  cut  it  down  was  determined,  no  injunction  having  been 
prayed.     Jesus  College  v.  Bloom,  3  Atk.  2G2. 

Sir  T.  A.,  in  the  same  settlement  in  which  he  made  himself  tenant  for 
life  without  impeachment  of  waste,  with  full  liberty  to  commit  waste,  set- 
tled a  jointure  upon  his  wife  for  life,  without  impeachment  of  waste.  On 
settling  another  part  of  his  estate,  he  created  a  term  on  trust  to  secure  a 
rent-charge  of  300?.  per  annum  to  his  wife,  as  a  further  part  of  her  jointure, 
and  afterwards  out  of  the  rents  and  profits  thereof  to  raise  money  from  time 
to  time,  to  reimburse  her  expenses  in  sustaining  and  repairing  her  jointure 
estate.  A  bill  was  brought  by  the  daughter  of  Sir  T.  A.  after  his  death  and 
the  death  of  her  brother  without  issue,  against  her  mother,  to  enjoin  her 
from  committing  spoil  and  destruction  on  her  jointure  estate,  and  for  satis- 
faction for  the  damage  done  thereby ;  suggesting  that  she  had  cut  down  even 
such  timber  as  was  not  fit  for  repairs,  and  young  saplings,  &c,  leaving 
not  a  twig  on  the  estate.  Lord  Hardwicke,  upon  the  general  ground,  con- 
sidering the  question  merely  as  it  concerned  tenant  for  life  without  im- 
peachment of  waste  under  a  settlement,  seemed  to  think  that  the  court 
could  not  interpose  to  prevent  such  a  tenant  from  cutting  down  timber  in  an 
improper  state.  But,  on  the  special  circumstances  of  the  case,  his  lordship 
expressed  himself  to  this  effect, — This  settlement  is  all  in  the  settler's 
own  handwriting,  who  does  not  appear  to  have  been  a  lawyer  ;  and  though 
a  counsel  was  said  to  be  employed,  there  is  no  evidence  thereof.  It  is  na- 
tural to  suppose,  that  from  the  variety  of  expressions  in  the  additional 
words  to  the  clause,  wherein  he  make3  himself  tenant  for  life,  he  thought 
there  was  some  difference.  Besides,  the  term  for  his  wife's  reimbursement 
is  extraordinary ;  and  it  is  absurd  to  suppose  he  meant  to  leave  her  at  liberty 
to  cut  down  and  strip  the  estate  of  every  stick  of  timber,  (which  are  the 
natural  botes  for  repairs,)  and  then  to  come  by  this  term  to  be  reimbursed 
her  expenses  in  buying  timber  of  repairs :  it  is  contrary  to  the  plain  in- 
tent, which  was  that  she  should  be  tenant  for  life  without  impeachment 


472  OF   WASTE. 

(X)  Where  Waste  may  bo  restrained  by  Injunction. 

of  waste,  to  prevent  trouble  in  little  matters ;  but  that  she  should  be 
reimbursed  out  of  this  term  what  she  should  pay  out  of  her  own  pocket. 
Therefore,  as  the  defendant  has  cut  down  timber  on  this  estate  without 
applying  it  to  repairs,  she  shall  have  no  benefit  of  this  term,  till  she  has 
reimbursed  to  the  estate  what  she  has  so  unreasonably  cut  away ;  and  as 
to  the  future,  the  evidence  being,  that  she  has  left  no  timber  fit  even  for 
the  repair  of  farm-houses,  I  shall  restrain  her  by  the  decree  from  cutting 
any  more  timber  off  the  estate  without  leave  of  the  court. 
Aston  v.  Aston,  1  Ves.  264. 

T  D  devised  his  real  estates,  situate  at  C,  W,  and  B,  to  his  wife,  the  de- 
fendant, for  life,  remainder  to  E  H  for  life,  remainder  to  the  plaintiff  in  fee. 
Just  before  his  death  he  added  two  codicils,  the  last  of  which,  and  the 
material  one  in  the  present  question,  was  in  these  words: — "Whereas  I 
have  devised  my  estates  by  my  last  will  and  testament,  as  therein  men- 
tioned, and  my  dear  wife  has  no  power  to  cut  down  any  timber ;  now  / 
give  unto  my  said  wife  for  and  during  so  long  time  as  she  shall  continue 
my  widow,  full  power  and  authority  to  cut  timber  upon  any  part  of  my 
estate,  for  her  own  use  and  benefit,  at  all  seasonable  times  of  the  year." 
The  defendant,  under  this  power,  made  contracts  for,  and  began  to  fell 
timber ;  whereupon  the  plaintiff  filed  his  bill  against  her,  charging,  that 
she  had  cut  down  a  great  many  trees  that  had  been  planted  for  shelter 
and  ornament  to  the  mansion-houses,  and  which  stood  in  the  lawns,  gar- 
dens, and  pleasure-grounds  belonging  to  the  testator,  and  also  great  num- 
bers of  saplings,  and  timber  trees  unfit  to  be  cut,  and  praying  an  account 
of  the  timber  so  cut,  and  satisfaction  for  the  same,  and  an  injunction  to 
restrain  the  defendant  from  committing  waste  and  destruction  upon  the 
estates.  The  defendant  in  her  answer  admitted,  that  she  had  cut  down 
several  trees  in  the  lawns  and  pleasure-grounds,  but  insisted  that  it  was 
for  the  improvement  of  the  place,  by  widening  the  passages,  and  prevent- 
ing damps ;  she  also  alleged,  that  oak  and  ash  trees  of  such  a  dimension 
were  accounted  timber  trees,  and  that  she  had  cut  down  none  under  such 
sizes.  An  injunction, (a)  however,  was  granted  to  restrain  her  from  cutting 
trees  which  were  saplings,  and  not  proper  to  be  cut  as  timber.  The  de- 
fendant afterwards  intermarried,  and  the  cause  coming  on  to  be  heard, (b) 
Lord  Chancellor  was  pleased  to  direct  a  trial  at  law  upon  the  following 
issue,  viz.,  Whether  the  defendant  had  cut  any  trees  or  other  timber  which 
had  been  placed,  or  designedly  left  for  the  ornament  or  shelter  of  the  man- 
sion-house, gardens,  and  pleasure-grounds  at  C  and  at  W  ;  and  also,  whe- 
ther she  had  cut  any  saplings  or  young  trees  down  which  are  not  proper 
to  be  felled  as  timber,  and  what  damage  had  been  sustained  thereby. 

Chamberlyne  v.  Dummer,  1  Bro.  Ch.  Rep.  ICG.  (a)  The  injunction  was  said  to  issue 
nearly  in  the  terms  of  that  of  Obrien  v.  Obrien,  20th  May,  17") I,  which  was,  to  restrain 
the  defendants  from  cutting  any  timber  trees  or  other  trees  growing  upon  the  estates, 
which  were  planted  or  growing  there  for  the  ornament  or  shelter  of  the  mansion-house, 
or  that  grew  in  vistas,  planted  walks,  or  lines,  for  the  ornament  of  the  park  part  of 
the  estate,  and  also  from  cutting  down  any  saplings  growing  on  any  part  of  the  estate 
not  proper  to  be  felled,  till  answer  or  further  order.     (6)  3  Bro.  Ch.  Hep.  549. 

||  Cutting  timber  where  necessary  for  the  growth  of  underwood  is  not 
waste. 

Burgos  v.  Lamb,  16  Ves.  179. || 

A  bill  was  filed  by  the  eldest  son,  tenant  in  tail,  expectant  on  the  death 
of  the  father,  tenant  for  life,  to  restrain  the  father  from  committing  waste, 


OF  WASTE.  473 

(X)  Where  "Waste  may  be  restrained  by  Injunction. 

by  cutting  down  timber,  especially  such  as  was  ornamental  to  the  house. 
The  court,  upon  affidavit,  and  certificate  of  the  bill  filed,  granted  an 
injunction  to  restrain  the  defendant  from  committing  waste  upon  such 
part  of  the  estate,  whereof  he  was  subject  to  impeachment  for  waste, 
and  as  to  the  mansion-house,  out-houses,  gardens,  and  orchards,  timber 
growing  for  ornament  and  shelter  to  the  house,  to  restrain  him  from  com- 
mitting waste  therein  till  answer  or  further  order. 

Leighton  v.  Leigbton,  22d  March,  1747-8,  1  Bro.  Ch.  Rep.  167.] 

||  There  has  been  much  uncertainty  as  to  what  is,  and  what  is  not  to  be 
considered  ornamental  timber.  The  principle  on  which  the  court  has  gone 
is,  that  if  the  testator,  or  author  of  the  interest  by  deed,  had  gratified  his 
own  taste  by  planting  for  ornament,  though  he  had  adopted  the  species 
the  most  disgusting  to  the  tenant  for  life,  and  the  most  agreeable  to  the 
tenant  in  tail,  and  upon  the  competition  between  those  parties,  the  court 
should  see  that  the  tenant  for  life  was  right,  and  the  other  wrong,  in  point 
of  taste,  yet  the  taste  of  the  testator,  like  his  will,  binds  them ;  and  it  is 
not  competent  to  them  to  substitute  another  species  of  ornament  for  that 
which  the  testator  designed.  The  question,  which  is  the  most  fit  method 
of  clothing  an  estate  with  timber  for  the  purpose  of  ornament,  cannot  be 
safely  trusted  to  the  court. 

Per  Lord  Eldon,  0  Ves.  149 ;  and  see  ace.  Lushington  v.  Boldero,  6  Madd.  149. 

And,  therefore,  it  is  not  enough  for  the  affidavits  to  ground  an  injunction 
to  show  that  the  trees  are  ornamental.  It  must  be  shown  that  they  were 
planted  or  left  standing  for  the  purpose  of  ornament. 

Coffin  v.  Coffin,  Jacob,  70. 

The  principle  has  been  extended  from  ornament  of  the  house  to  out- 
houses and  grounds,  then  to  plantations,  vistas,  avenues,  and  all  the  rides 
about  the  estate  for  ten  miles  round :  and  in  the  case  of  the  Marquis  of 
Downshire  v.  Sandys,  it  was  held  to  extend  to  clumps  of  firs  on  a  common 
two  miles  distant  from  the  house,  they  having  been  planted  for  ornament. 

Marquis  of  Downshire  v.  Sandys,  6  Ves.  107 ;  and  see  Tamworth  v.  Ferrers,  G  Ves. 
419  ;  Davis  v.  Leo,  Ibid.  787. 

And  the  court  granted  the  injunction  where  the  trees  were  planted  to 
exclude  objects  from  view ;  holding  this  case  within  the  principle. 
Day  v.  Merry,  16  Ves.  375 ;  and  see  Burges  v.  Lamb,  Ibid.  174. 

But  the  injunction  will  not  be  extended  to  trees  which  protect  the  pre- 
mises from  the  effects  of  the  sea.  And  the  court  refused  in  one  case  to 
insert  in  the  order  the  words  "contributing  to  ornament,"  and  the  in- 
junction was  accordingly  taken  according  to  Chamberlyne  v.  Dummer 
{supra)  in  the  terms  "  standing  for  ornament  or  shelter." 

Coffin  v.  Coffin,  Jacob,  70;  Williams  v.  Macnamara,  8  Ves.  70;  and  see  Jacob,  71, 

notd.\\ 

/3  A  -was  tenant  for  life  without  impeachment  of  waste,  except  as  to 
"  the  timber  growing  in  the  park,  avenues,  demesne  lands,  and  woods 
adjoining  to  the  capital  messuage;"  he  cut  timber  in  woods  not  precisely 
answering  to  that  description,  but  which  were  an  ornament  or  shelter  to 
the  messuage.  Held  that  he  was  guilty  of  equitable  waste,  and  an 
account  was  directed  and  injunction  granted. 

Newdigate  v.  Newdigato,  2  Clark.  &  Fin.  601.£f 

[Lands  were  devised  to  trustees  to  be  sold,  and  the  money  to  be  laid 
out  in  the  purchase  of  other  lands,  which,  when  purchased,  were  to  be  set- 
Vol.  X.— 60  2  R  2 


474  OF  WASTE. 

(0)  What  Relief  may  be  given  in  Equity,  in  Cases  of  Waste. 

tied  to  the  use  of  A  for  life,  without  impeachment  of  waste,  remainder 
over.  The  rents  and  profits  of  the  lands  to  be  sold  were  directed  to  be, 
till  sale,  to  the  use  of  the  same  persons  who  would  be  entitled  to  the  lands 
that  were  to  be  purchased.  It  was  decreed  that  A,  the  tenant  for  life, 
could  not  cut  down  timber  on  the  lands  that  were  directed  to  be  sold. 
Countess  Dowager  of  Plymouth  v.  Lady  Archer,  1  Bro.  Ch.  Hep.  159. 

Although,  as  appears  from  the  above  cases,  an  injunction  will  issue  to 
prevent  a  tenant  for  life  without  impeachment  of  waste  from  committing 
improper  waste,  yet  if  the  answer  deny  any  intention  of  doing  so,  be  not 
excepted  to,  and  be  full,  the  order  for  the  injunction  will  be  discharged. 

Countess  of  Strathmore  v.  Bowes,  2  Bro.  Ch.  Rep.  88.] 

||  The  act  of  sending  a  surveyor  to  mark  out  trees  is  a  sufficient  threaten- 
ing of  waste  to  be  a  ground  for  an  injunction. 

Jackson  v.  Cator,  5  Ves.  688.  [J 

(0)  What  Relief  may  be  given  in  Equity,  in  Cases  of  Waste. 

A  bill  was  brought  to  restrain  tenant  in  dower  from  getting  peat :  Lord 
Chancellor  dismissed  it  with  costs,  as  it  appeared  to  be  vexatious;  the  peat 
she  sold  not  being  above  the  value  of  ten  pence.  But  herein  it  was  said, 
that  digging  peat  is  in  many  places  the  ordinary  bote ;  and  perhaps  the 
only  fruit  that  can  arise  from  the  land.  They  do  not  carry  away  the 
soil,  for  they  dig  off  the  turf,  then  take  away  the  peat,  and  lay  the  turf 
down  again :  and  tenant  for  life  can  no  more  dig  peat  to  sell  than  cut 
down  timber  to  sell ;  and  the  Chancellor  said,  if  he  was  to  give  any 
relief,  he  must  direct  an  issue ;  but  that  the  cause  was  of  too  frivolous  a 
nature  to  maintain  the  expense. 

MS.  Rep.  Wilson  v.  Bragg,  3  March,  1742. 

A  bill  being  brought  to  redeem  a  mortgage,  on  the  hearing,  an  account 
was  decreed,  and  240/.  reported  due ;  to  which  report  the  plaintiff  had 
taken  exceptions.  The  cause  thus  standing  in  court,  the  Lord  Keeper, 
on  a  motion,  and  reading  affidavits  that  the  defendant  had  burnt  some  of 
the  wainscot  and  committed  waste,  ordered  the  defendant  to  deliver  up 
possession  to  the  plaintiff,  who  was  a  pauper,  giving  security  to  abide 
that  event  of  the  account. 
2  Tern.  392,  Hanson  v.  Derby. 

A  tenant  for  life,  remainder  to  trustees  to  preserve,  &c,  remainder  to  C 
the  plaintiff  in  tail,  remainder  over,  with  power  to  A  with  consent  of  trus- 
tees to  fell  timber,  and  the  money  arising  to  be  vested  in  lands,  &c,  to 
same  uses,  &c.  A  felled  timber  to  the  value  of  3000/.  with  consent  of 
trustees,  who  never  intermeddled,  and  A  had  suffered  some  of  the  houses 
to  go  out  of  repair.  C  by  bill  prayed  an  account  and  injunction.  The 
Master  of  the  Rolls  said,  that  the  timber  might  be  considered  under  two 
denominations,  to  wit,  such  as  was  thriving  and  not  fit  to  be  felled ;  and  such 
as  was  unthriving,  and  what  a  prudent  man  and  a  good  husband  would 
fell,  &c,  and  ordered  the  Master  to  take  an  account,  ike.  And  the  value 
of  the  former,  which  was  waste,  and  therefore  belongs  to  the  plaintiff,  who 
is  next  in  remainder  of  the  inheritance,  is  to  go  to  the  plaintiff,  and  the 
value  of  the  other  is  to  be  laid  according  to  the  settlement,  &c.  But  as  to 
repairs,  the  court  never  interposes  in  case  of  permissive  waste,  either  to 
prohibit  or  give  satisfaction,  as  it  does  in  case  of  wilful  waste  ;  and  where 
iha  court  have  jurisdiction  of  the  principal,  viz.,  the  prohibiting,  it  docs  in 


OF   WASTE.  475 

(0)  What  Relief  may  be  given  in  Equity,  in  Cases  of  Waste. 

consequence  give  relief  for  waste  done,  either  by  way  of  account,  as  for 
timber  felled,  or  by  obliging  the  party  to  rebuild,  &c,  as  in  case  of 
houses,  &c,  and  mentioned  Lord  Bernard's  case  as  to  Raby  Castle. 
2  Vera.  But  as  to  repairs,  it  was  objected,  that  the  plaintiff  here  had 
no  remedy  at  law  by  reason  of  the  mesne  estate  for  life  to  the  trustees, 
between  plaintiff's  remainder  in  tail,  and  defendant's  estate  for  life,  and 
that  therefore  equity  ought  to  interpose,  &c,  and  that  this  was  a  point 
of  consequence.     Sed  non  allocatur. 

MS.  Rep.  Mich.  Vac.  1733,  Lord  Castlemain  v.  Lord  Craven. 

A  lord  of  a  manor  may  bring  a  bill  for  an  account  of  ore  dug,  or 
timber  cut,  by  the  defendant's  testator. — Thus, 

A  customary  tenant  of  lands,  in  which  was  a  copper  mine,  that  never 
had  been  opened,  opened  the  same,  and  dug  out  and  sold  great  quantities 
of  ore,  and  died ;  and  his  heir  continued  digging  and  disposing  of  great 
quantities  out  of  the  said  mine.  The  lord  of  the  manor  brought  a  bill  in 
equity  against  the  executor  and  heir,  praying  an  account  of  the  said  ore  ; 
and  alleged  that  these  customary  tenants  were  as  copyhold  tenants,  and 
that  the  freehold  was  in  the  plaintiff  as  lord  of  the  manor  and  owner  of 
the  soil :  and  that  the  manner  of  passing  the  premises  was  by  surrender 
into  the  hands  of  the  lord,  to  the  use  of  the  surrenderee.  It  was  insisted 
for  the  defendants,  that  it  did  not  appear  that  the  admittance,  in  this 
case,  was  to  hold  ad  voluntatem  domini  secundum  consuetudinem,  &c, 
without  which  words,  it  was  insisted,  there  could  be  no  copyhold,  as  had 
been  adjudged  in  L.  Ch.  J.  Holt's  time.  And  L.  C.  Cowper  said  it 
would  be  a  reproach  to  equity  to  say,  that  where  a  man  has  taken 
another's  property,  as  ore,  or  timber,  and  disposed  of  it  in  his  lifetime, 
and  dies,  there  should  be  no  remedy. 

1  P.  Wms.  40G,  Bp.  of  Winchester  v.  Knight.  But  his  lordship  said,  in  this  case, 
that  as  to  the  trespass  of  breaking  up  meadow  or  ancient  pasture-ground,  it  dies  with 
the  person.     Ibid.     ||See  Richards  v.  Noble,  3  Meriv.  G73.|| 

||  And  in  a  late  case,  Sir  Thomas  Plumer,  V.  C,  overruled  a  demurrer 
to  a  bill  against  the  representative  of  a  tenant  for  life,  for  an  account  of 
equitable  waste  committed  by  him,  and  for  relief,  on  the  principle  that, 
where  equitable  waste  has  been  committed,  the  court  has  jurisdiction  to 
make  the  representative  of  the  party  committing  it  accountable. 

Lansdown  v.  Lansdown,  1  Madd.  141. || 

Converting  a  brewhouse  into  tenements  of  a  greater  value,  is  waste, 
notwithstanding  the  melioration,  by  reason  of  the  alteration  of  the  nature 
of  the  thing  and  of  the  evidence ;  and  so  resolved  on  a  trial  before  Hale, 
C.  J.,  and  the  jury  gave  the  verdict  accordingly,  and  100  marks  single 
damages,  which  being  trebled  amounted  to  200?.,  which  the  Chancery 
compelled  Cole  to  take. 

Lev.  311,  Cole  v.  Green. 

Lessee  for  500  years  of  land,  about  200?.  a  year,  built  several  houses, 
and  thereby  improved  the  rents  from  2001.  a  year  to  1400?.  a  year,  and 
quietly  enjoyed  the  same  for  twenty  years  and  more,  and  then  an  action  of 
waste  was  brought  for  pulling  down  a  brick  wall,  and  cutting  down  fruit 
trees,  and  digging  gravel  for  laying  the  foundations  of  the  houses  built  on  * 
the  said  ground.  He  brought  a  bill  setting  forth,  that  such  building  could 
not  be  accounted  any  waste,  but  rather  a  melioration  and  improvement  of 
the  land.   The  defendant  pleaded  the  statute,  by  which  provision  is  made 


476  OF  WASTE. 

(O)  What  Rel*s>f  may  be  given  m  Equity,  in  Cases  of  Waste. 

for  bringing  actions  of  waste.     But  the  court  overruled  the  plea,  and  or- 
dered the  defendant  to  answer  and  to  speed  the  cause. 
Fin.  Rep.  135,  Wild  v.  Sir  Ed.  Stradling. 

An  under  tenant  of  a  jointress  commits  waste  sparsim,  so  as  at  law  the 
estate  was  forfeited,  but  insisted  that  he  had  improved  the  estate  from  40J. 
to  60/.  per  armum,  and  offered  to  take  a  lease  of  it  at  that  rent  for  50  years, 
and  to  answer  the  value  of  the  timber  on  a  quantum  damnijicatus.     Qv.cere. 

2  Vern.  R.  2G3,  pi.  2 17,  Ligo  v.  Smith  and  Leigh. 

One  seised  in  fee  of  lands  in  which  there  were  mines,  all  of  them  un- 
opened, by  a  deed  conveyed  those  lands,  and  all  mines,  waters,  trees,  &c, 
to  trustees  and  their  heirs,  to  the  use  of  the  grantor  for  life,  (who  soon  after 
died,)  remainder  to  the  use  of  A  for  life,  remainder  to  his  first,  &c,  son  in 
tail-male  successively,  remainder  to  B  for  life,  remainder  to  his  first,  &c, 
son  in  tail-male  successively,  remainder  to  his  two  sisters  C  and  D  and  the 
heirs  of  their  bodies,  remainder  to  the  grantor  in  fee.  A  and  B  had  no 
sons,  and  C,  one  of  the  sisters,  died  without  issue,  by  which  the  heir  of  the 
grantor  as  to  one  moiety  of  the  premises  had  the  first  estate  of  inheritance: 
A.  having  cut  down  timber  and  sold  it,  and  threatened  to  open  the  mines, 
the  heir  of  the  grantor,  being  seised  of  one  moiety  ut  supra,  by  the  death 
of  one  of  the  sisters  without  issue,  brought  his  bill  for  an  account  of  the 
moiety  of  the  timber,  and  to  stay  A's  opening  of  any  mine :  and  it  was 
adjudged  the  right  to  this  timber  belongs  to  those  who,  at  the  time  of  its 
being  severed  from  the  freehold,  were  seised  of  the  first  estate  of  inheri- 
tance, and  the  property  becomes  vested  in  them. 

2  P.  Wms.  240,  Whitfield  v.  Bewit.  [It  appears  by  Reg.  Lib.  B.  1723,  fol.  576, 
that  there  were  in  this  case  trustees  to  preserve  the  contingent  remainders,  and  the  bill 
expressly  stated  applications  to  have  been  made  to  the  heir  of  the  surviving  trustee,  to 
interpose  and  put  a  stop  to  the  commission  of  the  waste,  but  that  he  refused  to  act.] 

A  bill  was  brought  against  the  executors  of  a  jointress  to  have  a  satis- 
faction out  of  assets  for  permissive  waste  upon  the  jointure  of  the  testatrix, 
&c.  But  by  Cowper,  C.,  the  bill  must  be  dismissed  ;  for  here  is  no  cove- 
nant that  the  jointress  shall  keep  the  jointure  in  good  repair ;  and  in  the 
common  case,  without  some  particular  circumstances,  there  is  no  remedy 
in  law  or  equity  for  permissive  waste  after  the  death  of  the  particular 
tenant. 

Vin.  Abr.  tit.  Wasle,  p.  523,  cites  MSS.  Rep.  I  G.  1,  in  Cane.  Turner  v.  Buck.  IjSec 
2  Meriv.  408.  |j 

||Where  the  reversioner  of  leaseholds,  with  the  privity  of  tenant  for  life, 
renewed  the  lease  in  his  own  name,  and  covenanted  to  repair  the  premises, 
Sir  John  Leach,  V.  C,  held,  that  he  was  to  be  considered  as  having  en- 
tered into  the  covenant  on  behalf  of  the  tenant  for  life,  and  that  the  latter1  s 
estate  was  liable  for  dilapidations  occasioned  by  his  neglecting  to  repair. 

March  v.  Wells,  2  Sim.  &  Stu.  87.|| 

It  has  been  said  in  equity,  that  a  remainder-man  for  life  shall,  in  waste, 
recover  damages  in  proportion  to  the  wrong  done  to  the  inheritance,  and 
not  in  proportion  only  to  his  own  estate  for  life. 

1  Vern.  158,  Brown  v.  Brown. 

A  being  tenant  for  ninety-nine  years,  if  he  should  so  long  live,  remain- 
der to  trustees  to  preserve  contingent  remainders,  remainder  to  his  first  and 
other  sons  in  tail,  remainder  to  B  in  tail ;  A  and  B  before  issue  born  of  A 
fell  timber.     The  eldest  son  of  A  afterward  brings  his  bill  for  an  account 


OF    WASTE.  477 

(0)  What  Relief  may  be  given  in  Equity,  in  Cases  of  Waste 

and  satisfaction  of  the  timber  against  B.  Per  Lord  Ch. — The  plaintiff  has 
no  remedy  at  law,  either  in  his  own  name,  or  in  the  name  of  his  trustees. 
A,  if  he  had  not  consented  to  it,  should  have  brought  trespass ;  for  tenant 
for  years  is  considered  as  a  fiduciary  for  the  remainder-man  or  his  lessor. 
If  A  had  had  an  estate  for  life,  and  no  limitation  to  trustees,  the  plaintiff 
could  have  had  no  remedy  ;  because  tenant  for  life  might  have  barred,  or 
surrendered  the  whole  estate  to  the  remainder-man;  but  here  the  freehold 
was  in  the  trustees  ;  and  the  possession  of  the  lessee  for  years  is  in  law  the 
possession  of  the  owner  of  the  freehold.  The  trustees,  however,  could  not 
here  have  maintained  waste,  because  the  common  law  gave  no  action  of 
waste,  but  to  the  owner  of  the  inheritance ;  and  the  statute  of  Gloucester 
gives  the  writ  to  the  same  person  ;  but  the  trustee  is  in  no  other  condition 
than  a  remainder-man  for  life.  Trustees  may  bring  a  bill  in  equity  to  stay 
waste,  before  the  contingent  remainder  comes  in  esse.  If  the  trustees  had 
brought  such  a  bill,  the  court,  as  to  trees  actually  cut,  would  have  obliged 
them  to  have  made  satisfaction  in  money,  to  have  been  secured  to  attend 
the  contingent  uses.  Where  there  is  tenant  for  life  or  years  subject  to 
waste,  and  timber  is  blown  down,  the  owner  of  the  first  remainder  in  tail 
vested  shall  have  it ;  for  the  common  law  considers  an  estate  in  contin- 
gence  as  no  estate :  and  when  the  tree  is  severed,  the  property  vests  in 
somebody.  If  there  be  tenant  for  life,  remainder  for  life,  remainder  in  fee, 
the  remainder-man  can  have  no  action  for  waste,  because  the  plaintiff  must 
recover  the  place  wasted,  which  would  be  injustice  to  the  remainder  over; 
but  such  a  remainder-man  of  the  inheritance  after  the  intervening  estate 
may  have  trover  for  the  trees,  and  if  remainder-man  for  life  dies,  in  the  life 
of  remainder-man  in  fee,  he  may  bring  waste.  Though  an  injunction  is  a 
proper  remedy,  yet  it  has  never  been  determined  that  a  bill  for  an  account 
cannot  be  maintained  afterward  :  and  though  a  recovery  was  suffered  after 
waste  done,  it  was  to  the  use  of  plaintiff  and  his  heirs,  which  is  no  new  use, 
and  ought  not  to  bar  waste  in  equity.  It  is  true  the  action  of  waste  dies 
with  the  person  ;  but  though  waste  will  not  lie  at  law,  as  the  person  com- 
mitting it  is  dead,  yet  he  may  have  relief  in  this  court.  It  is  held,  in  all 
cases  of  fraud,  the  remedy  never  dies  with  the  person,  but  relief  may  be 
had  against  the  executor  out  of  assets  ;  and  this  court  will  follow  the  assets 
of  the  party  liable  to  the  demand  ;  and  collusion  in  this  court  is  the  same 
as  fraud. — Decreed  a  satisfaction  to  be  made  to  the  plaintiff,  for  the  value 
of  the  timber,  as  he  is  now  tenant  in  fee  of  the  estate  ;  but  would  not  give 
any  interest,  as  that  would  be  carrying  it  +oo  iar 

MSS.  Rep.  Garth  v.  Cotton,  26  G.  2  ;  [1  Ves.  521,546,  S.  C.  ;  3  Atk.  751,  S.  C] 

[An  estate  was  settled  upon  A,  for  her  jointure  without  impeachment  of 
waste,  except  in  pulling  down  houses  and  felling  timber,  remainder  to  her 
son  B  for  life,  without  impeachment  of  waste  generally,  remainder  to 
trustees  to  preserve  contingent  remainders,  remainder  to  his  issue  in  tail, 
remainder  to  his  sister  C  in  tail.  B  in  the  lifetime  of  A,  and  with  her 
privity,  fells  timbers  upon  the  estate,  and  afterwards  dies  in  her  lifetime ; 
wnereupon  C  brought  an  action  of  waste  against  A,  to  recover  treble 
damages,  and  the  place  wasted,  and  had  a  verdict.  But  it  being  proved 
that  the  timber  was  cut  down  with  the  knowledge  of  C,  and  that  she  encou- 
raged the  doing  so,  a  perpetual  injunction  was  granted  to  restrain  her  from 
proceeding  any  further  at  law. 

Aston  v.  Aston,  1  Ves.  3%.1 


478      OF  WILLS  AND  TESTAMENTS. 

Of  Wills  and  Testaments. 

j| If  a  tenant  for  life  has  rendered  accounts  to  the  iemainder-man  of  tim- 
ber cut  by  him  during  a  period  more  than  six  years  before  a  bill  is  filed 
against  him  for  an  account  of  such  timber,  and  of  the  value  of  it,  the  statute 
of  limitations  cannot  be  pleaded  to  the  bill ;  for  though,  if  the  remainder- 
man had  brought  an  action  of  trover,  the  defendant  might,  notwithstanding 
the  accounts,  have  pleaded  the  statute,  he  could  not  have  done  so  if  an 
action  of  assumpsit  had  been  brought. 

Hony  v.  Hony,  1  Sim.  &  Stu.  5G8 ;  and  see  Barry  v.  Barry,  1  Jac.  &  W.  651. 

In  the  Exchequer  it  is  a  rule,  that  where  any  application  shall  be  made 
for  an  injunction  to  stay  waste,  or  in  the  nature  of  an  injunction  to  stay 
waste,  before  the  defendant  is  in  court,  supported  by  affidavit,  such  affida- 
vit shall  be  filed,  and  the  office  copy  thereof  produced,  with  the  necessary 
certificate  of  the  bill  being  filed. 

R.  H.  1  &  2  Geo.  4,  Exch.  9  Price,  88.|| 

0A  bill  to  stay  waste  should  show  a  good,  and  not  a  doubtful  title 
to  the  place  wasted,  or  in  which  waste  is  apprehended  ;  equity  will  not 
interfere  for  that  purpose,  when  by  possibility  the  plaintiff's  claim,  now 
confessedly  uncertain,  may  turn  out,  upon  evidence  hereafter  to  be  dis- 
covered, to  cover  a  part  of  the  land  in  which  it  is  said  the  waste  is  con- 
templated. 

Hough  v.  Martin,  2  Dev.  fr  Bat.  Eq.  379.? 


OF  WILLS  AND   TESTAMENTS. 


Several  branches  of  these  heads  having  been  already  treated  of  under 
the  articles  Executors  and  Administrators,  and  Legacies  and  Devises,  little 
more  remains  than  to  consider  what  formal  circumstances  are  necessary  to 
the  perfection  of  a  will  and  testament,  and  by  what  means,  and  for  what 
causes  they  may  be  avoided. 

For  the  better  understanding  of  these  particulars,  we  will  arrange  the 
matter  relative  to  the  residue  of  this  subject  under  the  following  divisions, 
and  inquire, 

(A)  What  is  a  Will  and  Testament,  and  wherein  they  differ. 

(B)  Who  are  capable  of  making  a  Will  and  Testament. 

(C)  What  are  the  Requisites  to  constitute  a  good  will. 

(D)  Of  Wills  in  Writing  :—And  here, 

I.  What  shall  be  a  good  Will  in  Writing  to  pass  Lands  and  Tenements,  #~c,  Wherein, 

1.  In  what  Language  and  Hand  a  Will  may  be  written. 

2.  Of  the  Circumstances  of  Signing,  Attestation,  Publication,  &c. 

3.  Of  the  Republication: — as  what  will  amount  to  a  Republication,  and  where 
a  Republication  will  make  a  Devise  good. 

II.  What  shall  be  a  good  Will  in  Writing  of  Goods  and  Chattels. 
III.  What  shall  be  a  sufficient  Proof  of  a  Will. 

(E)  Of  Nuncupative  Wills. 

(F)  Of  the  Nature  and  Effect  of  a  Will  and  Testament. 


OF  WILLS  AND  TESTAMENTS.       479 

(A)  What  is  a  Will  and  Testament,  and  wherein  they  differ. 

(G)  How  Wills,  &c.  may  be  construed.     ||  General  Rules  of  Construction.     And 
herein,— Of  the  admissibility  of  extrinsic  Evidence  to  explain  them.|| 

(H)  How  Wills  may  be  avoided :  Wherein, 

1.  What  shall  be  deemed  a  Revocation  of  a  Will:— And  herein, 

||1.  Of  Revocations  by  cancelling,  alterations,  and  subsequent  testamentary 

2.  Of  Revocations  by  subsequent  contracts,  changes  of  estate,  and  altera- 
tions in  circumstances.|| 

2.  Where  a  Will  shall  be  set  aside  for  Fraud,  &c,  and  where  Fraud  is  examinable. 


(A)  What  is  a  Will  and  Testament,  and  wherein  they  differ. 

A  testament  is  a  just  and  complete  declaration  or  sentence  of  a  man's 
mind,  or  last  will  of  what  he  would  have  to  be  done  with  his  estate  after 
his  death. 

Termes  de  Ley,  roc.  Testament;  Swinb.  part  1,  §  2  and  4;  Shep.  Abr.  part  4,  voc. 
Testament.  [Testamentum  est  voluntatis  nostra:  justa  (id  est,  solennis  et  legitima) 
sententia,  de  eo  quod  quisposl  mortem  suam  jkri  velit.     1.  1.    Modestin.  lib.  2,  Pandect.  J 

Or,  according  to  some,  a  will  is  a  declaration  of  the  mind,  either  by 
word  or  writing,  in  disposing  of  an  estate  ;  and  to  take  place  after  the 
death  of  the  testator. 

Carth.  38,  Lea  v.  Lib.  [Alienatio  in  mortis  evenlum,  ante  earn  revocabilis,  reiento 
interim  jure  possidendi  el  fruendi,  est  testamentum.  Grot.  lib.  2,  De  Jure  Belli  ac 
Pacis,  c.  6,  n.  14.]  A  will  shall  have  relation  only  to  the  testator's  death,  and  not  to 
the  making,  for  till  his  death  he  is  the  master  of  his  own  will;  and  therefore  the  will 
of  a  papist  in  Ireland  was  held  to  be  avoided  by  a  subsequent  statute  made  in  that  king- 
dom, which  enacts,  that  the  lands  of  papists  there  shall  not  be  devisable,  but  descend 
in  gavelkind.     Vin.  Abr.  tit.  Devise,  (H.  b,)  p.  7. 

It  is  in  Latin  called  testamentum,  i.  e.  testatio  mentis,  the  witness  of  a 
man's  mind  ;  and  to  devise  by  testament,  is  to  speak  by  a  man's  will  what 
his  mind  is  to  have  done  after  his  death :  and  it  is  sometimes  called  a  will, 
or  last  will,  for  these  words  are  synonyma,  and  are  indiscriminately  used 
in  our  law.  However,  by  the  civil  law,  it  is  only  said  to  be  a  testament 
when  there  is  an  executor  (a)  made  and  named  in  it;  and  when  there  is 
none,  it  is  but  a  codicil  only :  for  a  codicil  is  the  same  that  a  testament 
is,(6)  excepting  that  it  is  without  an  executor ;  and  a  man  can  make  but 
one  testament  that  can  take  effect,  but  he  may  make  as  many  codicils  as 
he  will. 

Carth.  38,  Lea  v.  Lib ;  1  Inst.  Ill;  Swinb.  part  1 ,  §  5.  [(a)  Hence  Vinnius  gives 
the  following  as  the  most  perfect  definition  of  a  testament:  Testamentum  est  suprema 
contestatio  in  id  solenniter  facta,  ut  quern  volumus,  post  mortem  nosiram  habeamus  hxredem. 
Comment,  in  Institut.  lib.  2,  c.  10.  (6)  The  civilians  define  a  codicil  to  be  ultima 
testati  vel  intestati  voluntas  minus  solennis .-  for  by  the  Roman  law,  there  might  be  a 
codicil,  whether  the  party  died  testate  or  intestate  ;  and  if  he  died  testate,  the  codicil 
might  either  be  precedent  or  subsequent  to  the  testament:  and  in  this  case  the  validity 
of  "the  codicil  depended  upon  the  validity  of  the  testament;  the  codicil  had  relation  to 
the  date  of  the  testament,  and  required  to  be  confirmed  by  the  testament.  But  the 
codicils  of  an  intestate  derived  all  their  efficacy  from  themselves,  stood  in  need  of  no 
confirmation,  and  were  regarded  only  from  the  day  on  which  they  were  made. 

And  by  the  common  law,  where  lands  or  tenements  are  devised  in 
writing,  although  there  be  no  executors  named,  yet  there  it  is  properly 
called  a  last  will ;  and  where  it  doth  concern  chattels  only,  a  testament. 

1  Inst.  111. 


4S0       OF  WILLS  AND  TESTAMENTS. 

(A)  What  is  a  Will  and  Testament,  and  wherein  they  differ. 

He  who  makes  the  testament  is  called  the  testator ;  and  when  a  man 
dies  without  a  will,  he  is  said  to  die  intestate. 
Shep.  Abr.  part  4,  voc.  Testament. 

A  testamentary  schedule  without  witnesses  or  an  executor,  has  been 
declared  a  will. 
2  Ld.  Raym.  1282,  Powell  v.  Beresford. 

[So,  a  writing  purporting  to  be  an  indenture,  but  by  the  party  making 
it  declared  to  be  his  will,  has  been  considered  as  a  testamentary  instru- 
ment. 

Hiekson  v.  Witham,  Finch.  R.  195.] 

{An  endorsement  upon  a  note  "I  give  this  note  to  A"  may  be  proved 
as  testamentary. 

4  Ves.  J.  565,  Chaworth  v.  Beech.     See  5  Ves.  J.  354,  Eden  v.  Smyth.} 

<3  Although  a  writing  be  called  a  deed,  and  the  party  has  been  advised 
to  make  a  deed,  yet,  if  the  operation  and  structure  of  the  writing  show  it 
to  be  testamentary,  made  with  a  view  to  the  disposition  of  a  man's  estate 
upon  his  death,  it  will  enure  as  a  will. 

Henry's  Executors  v.  Ballard,  2  Car.  L.  Repos.  595.  See  Millege  v.  Lemar, 
4  Desaus.  617. 

A  paper  writing  executed  by  two  persons,  making  a  joint  disposition 
of  their  property,  after  their  death,  cannot  be  admitted  to  probate  as  a 
conjoint  or  mutual  will ;  and  it  cannot  operate  or  be  proved  as  the  sepa- 
rate will  of  either  of  them,  because  it  purports  to  be  a  joint  and  not  a 
separate  will,  and  because  it  implies,  from  its  structure,  an  agreement 
between  them,  which  is  inconsistent  with  revocability,  and  it  therefore 
prevents  its  operation  as  a  will. 

Clayton  v.  Liverman,  2  Dev.  &  Bat.  558. 

A  paper  containing  some  technical  expressions  which  might  embrace 
the  idea  of  a  testamentary  disposition  of  property,  was  not  considered  in 
the  nature  of  a  will,  because  the  acts  to  be  done  by  the  persons  named 
in  it,  were  to  be  executed  as  speedily  as  possible,  and  in  the  lifetime  of 
the  maker. 

Hamilton  v.  Peace,  2  Desaus.  92. 

A  B  being  about  to  sail  for  the  West  Indies,  where  he  afterwards  died, 
addressed  a  letter  to  C  D,  containing  the  following  clause  :  "A  thousand 
accidents  might  occur  to  me,  which  might  deprive  my  sisters  of  that  pro- 
tection which  it  would  be  my  study  to  afford  ;  and  in  that  event,  I  must  beg 
that  you  will  attend  to  putting  them  in  possession  of  two-thirds  of  what 
I  may  be  worth,  appropriating  one-third  to  Miss  C  and  her  child,  in  any 
manner  that  may  appear  most  proper."  Held,  to  be  a  valid  will,  especially 
after  it  had  been  proved  as  the  last  will  of  A  B  before  the  surrogate,  and 
administration  with  the  will  annexed  had  been  granted  by  him:  held  also, 
that  C  and  her  son  were  each  entitled  to  a  moiety  of  one-third  of  the 
personal  estate  of  the  testator,  in  the  hands  of  the  administrator. 

Morcll  v.  Dickey,  1  Johns.  Ch.  153. 

The  court  rejected  a  paper  of  instructions,  signed  by  the  testatrix,  as 
the  one  referred  to  in  the  will  duly  attested,  the  paper  itself  not  having 
been  attested  nor  produced  to  the  witnesses. 

Sotheron,  in  the  goods  of,  2  Curt.  831.0 


OF  WILLS  AND  TESTAMENTS.      481 

(B)  Who  are  capable  of  making  a  Will  and  Testament. 

An  infant,  until  he  be  of  the  age  of  twenty-one  years,  can  make  no 
will  of  his  lands  Dy  statute  of  32  &  34  H.  8.  But  by  special  custom  in 
some  places,  vhere  land  is  devisable  by  custom,  he  may  devise  it  sooner ; 
and  of  his  g',ods  and  chattels,  if  he  be  a  boy,  he  may  make  a  will  at  four- 
teen years  of  age,  and  not  before  ;  and  if  a  maid,  at  twelve  years  of  age, 
and  not  before  :  and  then  they  may  do  it  without  and  against  the  consent 
of  their  tuto/,  father,  or  guardian. 

32  H.  8,  c.  1,  and  34  H.  8,  c.  5;  Swinb.  part  11,  §  2;  &  Williams  v.  Baker,  2  Car. 
L.  Repos.  599  #  ||  Rob.  Gav.  225  ;l|  0  West  v.  West,  10  S.  &  R.  446.g/ 

If  he  or  she  hath  attained  to  the  last  day  of  fourteen  or  twelve  years,  the 
testament  by  him  or  her  in  the  very  last  day  of  their  several  ages  aforesaid, 
is  as  good  and  lawful  as  if  the  same  day  were  already  then  expired. 

32  H.  8,  c.  I,  and  34  H.  8,  c.  5. 

Likewise,  if,  after  they  have  accomplished  these  years  of  fourteen  or 
twelve,  he  or  she  do  expressly  approve  the  testament  made  in  their  mi- 
nority, the  same  by  this  new  will  and  declaration  is  made  strong  and 
effectual. 

Swinb.  part  11,  §  2. 

And  yet  some  say  an  infant  cannot  make  a  will  of  his  goods  and  chattels 
until  he  be  eighteen  years  of  age. 

1  Inst.  89  b.  [The  doctrine  above  stated,  that  the  testamentary  power  commences 
in  males  at  fourteen,  and  in  females  at  twelve,  seems  to  be  the  most  relied  upon.  Vide 
Hargrave's  edit,  of  Co.  Litt.  89  b,  note  (6).]      {11  Ves.  J.  11.} 

It  has,  however,  been  agreed  in  equity,  that  a  female  may  make  a  will 
at  twelve  years  of  age  of  a  personal  estate,  and  a  male  at  seventeen  years 
of  age,  or  fifteen,(a)  if  he  be  a  person  of  discretion. 

2  Vem.  469.  [(a)  This  is  a  very  loose  dictum,  entitled  to  no  attention.]  |jlf  there 
be  a  local  custom,  that  lands  within  a  certain  precinct  shall  be  devisable  by  all  manner 
of  persons  at  fifteen,  it  is  good.  Rob.  Gav.  225.  That  a  boy  of  fourteen  may  make  a 
will  of  chattels,  see  Ex  parte  Holyland,  11  Ves.  ll.[| 

A  feme  covert  cannot  make  a  will  of  her  lands  and  goods,  except  it  be 
in  some  special  cases :  for  of  her  lands  she  can  make  no  will  with  or  with- 
out her  husband's  consent,  stat.  32  &  34  H.  8  ;  4  Rep.  51  ;  Bro.  Testament , 
13.  But  of  the  goods  and  chattels  she  has  as  executrix  to  any  other,  she 
may  make  an  executor  without  her  husband's  consent ;  for  if  she  does  not 
so,  the  administration  of  them  must  be  granted  to  the  next  of  kin  to  the 
deceased  testator,  and  shall  not  go  to  the  husband. 

12  H.  7,  c.24;  Perk.  §  502;  Fitz.  Exec.  40;  {2  Day,  163,  Fitch  v.  Brainerd.}  ,2  See 
Harvey  v.  Smith,  1  Dev.  &  Bat.  1 86  ;  Newberryport  Bank  v.  Stone,  13  Pick.  420.# 

j3A  will  executed  by  a  feme  covert  devising  real  estate  to  her  husband 
is  void. 

Fitch  v.  Brainerd,  2  Day,  163.0 

But  even  of  them  she  can  make  no  devise  with  or  without  her  hus- 
band's leave,  for  they  are  not  devisable;  and  if  she  devise  them  the  de- 
vise is  void. 

Plowd.  52G. 

Of  the  things  due  to  the  wife,  whereof  she  was  not  possessed  during  the 
marriage,  as  things  in  action,  and  the  like,  she  may  make  her  will,  at  least  she 
may  make  her  husband  executor  of  her  paraphernalia,  viz.,  her  necessary 
wearing  apparel,  being  that  which  is  fit  for  one  of  her  rank.     Some  say 

Vol.  X.— 61  2  S 


*82      OF  WILLS  AND   TESTAMENTS. 

(B)  Who  are  capable  of  making  a  Will  and  Testament. 

she  may  make  a  will  without  'her  husband's  leave,  others  doubt  of  this  ; 
^owever  all  agree,  that  she,  and  not  his  executor,  shall  have  this  after  her 
husband's  death  ;  and  that  the  husband  cannot  give  it  away  from  her ;  and 
of  the  goods  and  chattels  her  husband  has  either  by  her  or  otherwise,  she 
may  not  make  a  will  without  the  license  and  consent  of  her  husband  first 
xiad  so  to  do  :  but  with  his  leave  and  consent  she  may  make  a  will  of  his 
goods,  and  make  him  her  executor  if  she  will.  And  it  is  said  also,  that  if 
she  does  make  a  will  of  his  goods  in  truth  without  his  leave  and  consent, 
and  after  her  death  he  suffers  the  will  to  be  proved,  and  delivers  the  goods 
accordingly,  in  this  case  the  testament  is  good  :  and  yet  if  the  husband 
gives  the  wife  leave  to  make  a  will  of  his  goods,  and  she  does  so,  he  may 
revc.ke  the  same  at  any  time  in  her  lifetime,  or  after  her  death,  before  the 
will  is  proved.  But  a  woman  after  a  contract  with  any  man,  before  the 
marriage,  may  make  a  will  as  well  as  any  other,  and  is  not  at  all  disabled 
hereby. 

12  H.  7,  24;  18  Ed.  4  ;   11  Perk.  §  501  ;  Fitz.  Exec.  5,  28,  109;  Bro.  Test.  11. 

||The  simple  assent  of  her  husband  may  give  eflect  to  the  wife's  dispo- 
sition by  will  of  her  personalty,  as  against  her  nearest  of  kin  ;  but  such 
post-nuptial  consent  will  not  qualify  her  to  dispose  by  will  of  her  real  es- 
tate to  the  disappointment  of  her  heir.  And  if  her  disposition  by  will  of 
her  personal  property  emanate  from  the  bare  assent  of  her  husband,  it  is 
necessary  to  its  effect  that  the  husband  shall  survive  the  wife  ;  for  the  ope- 
ration of  such  consent  consists  in  its  being  a  waiver  by  the  husband  of  his 
right  to  administer  to  his  wife,  so  that  if  he  dies  before  his  wife  the  will  Is 
void  against  her  next  of  kin. 

Stevens  v.  Bagwell,  15  Ves.  156;  and  see  Scammell  v.  Wilkinson,  2  East,  552; 
Rob.  on  Wills,  27.  0  See  as  to  the  assent  of  the  husband,  Smellie's  Executors  v.  Rey- 
nolds, 2  Desaus.  GG ;  Cassel's  Administrator  v.  Vernon,  5  Mason,  332;  Grimke 
v.  Grimke's  Executors,  1  Desaus.  366;  Bradish  v.  Gibbs,  3  Johns.  Ch.  523;  Ander- 
son v.  Miller,  6  J.  J.  Marsh.  573. g/ 

When  personalty  of  any  kind  is  settled  upon  a  married  woman,  whether 
by  a  contract  to  which  her  husband  is  a  party,  or  by  the  settlement  or  gift 
of  other  persons,  she  has  the  same  power  over  it  in  equity  as  if  she  were 
a  single  woman,  without  any  express  provision  to  that  effect  ;  for  courts  of 
equity  consider,  if  she  takes  personal  property  for  her  separate  use,  she 
takes  it  with  all  its  incidents,  of  which  the  jus  disponendi  is  obviously  one. 

Fettiplace  v.  Gorges,  1  Ves.  jun.  46  ;  Rich  v.  Cockell,  9  Ves.  376. || 

Likewise,  a  wife,  whose  husband  is  banished  by  act  of  parliament  for 
life,  may  make  a  will  as  a  feme  sole. 

2  Vern.  104. 

A  mad  or  lunatic  person,  during  the  time  of  his  insanity  of  mind,  can- 
cel make  will  of  lands  or  goods  ;  but  such  a  one  as  hath  his  lucida  inter- 
valla,  clear  or  calm  intermissions,  may,  during  the  time  of  such  quietness 
and  freedom  of  mind,  make  his  will,  and  it  will  be  good. 

SJwinb.  part  11,  §  3;  ||8  Ves.  65  ;  9  Ves.  478;  12  Ves.  445.  As  to  lucid  intervals, 
in  which  a  testator  may  be  deemed  competent  to  make  his  will,  see  3  Bro.  C.  C.  441  ; 
11  Ves.  11;  1  Phill.  R.  90;  Rob.  on  Wills,  32,  (3d  edit.)[|  £See  Kinne  v.  Kinne, 
9  Conn.  102 ;  Turner  v.  Turner,  1  Litt.  R.  102  ;  Johnson  v.  .Moore's  Heirs,  1  Litt.  R. 
371  ;  Case  of  Cochran's  will,  1  Monr.  203  ;  Hathorn  v.  King,  8  Mass.  371  :  Cook  v. 
Fisher,  1  Paige,  171 ;  Dow  v.  Clarke,  5  Russ.  103  ;  Bogardus  v.  Clarke,  1  Edw.  106  ; 
Stewart's  Executors  v.  Lispenard,  20  Wend.  255 ;  Whitenach  v.  Strvker,  1  Green's 
Ch.  9  ;  Watson  v.  Watson's  Heirs,  2  B.  Monr.  74 ;  Reed's  will,  2  B.  Monr.  79  ;  Stone 
▼.  Damon,  12  Mass.  488. £/ 


OF  WILLS   AND  TESTAMENTS.     483 

(B)  Who  are  capable  of  making  a  Will  and  Testament. 

£  One  who  is  still  under  guardianship  5s  non  compos  may  make  will,  if 
actually  of  sound  mind. 

Stone  v.  Damond,  12  Mass.  488;  Breed  v.  Pratt,  18  Pick.  115.^ 
So  also,  an  idiot,  i.  e.  such  a  one  as  cannot  number  twenty,  or  tell  what 
age  he  is,  or  the  like,  cannot  make  a  will  or  dispose  of  his  lands  or  goods ; 
and  although  he  make  a  wise,  reasonable,  and  sensible  will,  yet  it  is  void : 
but  such  a  one  as  is  of  a  mean  understanding  only,  that  has  grossum  caput, 
and  is  of  the  middle  sort,  between  a  wise  man  and  a  fool,  is  not  prohi- 
bited to  make  a  will. 
Swinb.  part  11,  §  4. 

An  old  man  likewise,  who,  by  reason  of  his  great  age,  is  childish  again, 
or  so  forgetful  that  he  forgets  his  own  name,  cannot  make  a  will,  for  a  will 
made  by  such  a  one  is  void. 

Swinb.  part  11,  §  1 ;  6  Rep.  23,  Marquis  of  Winchester's  case. 

.5  If  at  the  making  of  the  will  the  testator  understands  what  he  is  doing, 
he  has  sufficient  capacity ;  it  is  not  essentially  necessary  that  he  should  be 
able  to  manage  his  affairs  generally. 

Kinne  v.  Kinne,  9  Conn.  102. 

Mental  capacity  to  make  a  will  is  always  presumed  ;  incapacity  must 

be  proved. 

Lessee  of  Hoge  v.  Fisher,  Pet.  C.  C.  Rep.  163.  See  Stevens  v.  Vancleve,  4  Wash. 
C.  C.  Rep.  262.g/ 

||  When  the  mind  of  a  dying  person  is  reduced  by  the  stress  of  his  ma- 
lady, or  by  general  exhaustion,  to  such  a  state  of  mental  depression  and 
debility  as  to  be  incapable  of  a  determinate  testamentary  act,  a  paper  signed 
by  him  as  his  will,  under  such  circumstances,  will  be  rejected  by  the  ec- 
clesiastical court ;  especially  if  such  instrument  contain  internal  evidence 
of  intellectual  weakness,  and  disturbs  the  settlement  of  the  testator's  af- 
fairs by  a  former  well-considered  will  made  by  him  when  in  full  possession 
of  his  mental  powers. 

Brouncker  v.  Brouncker,  2  Phill.  R.  57. 

Mental  incapacity  may  invalidate  only  a  part  of  a  will,  as,  in  a  late  case, 
where  a  testator  wrote  the  first  part  of  wThat  was  propounded  as  his  will 
with  his  own  hand,  but  the  concluding  part  was  written  by  the  executor, 
who  was  principally  benefited,  and  who  was  the  active  agent  in  bringing 
the  witnesses  to  the  house  of  the  deceased. 

Bellinghurst  v.  Vickers,  1  Phill.  187  ;  and  see  Wood  v.  Wood,  Ibid.  357. [| 

So  also  it  seems  a  drunken  man,  who  is  so  excessively  drunk  that  he  is 
deprived  of  the  use  of  his  reason  and  understanding,  during  that  time  may 
not  make  a  will ;  for  it  is  requisite  when  the  testator  makes  his  will,  that  he 
be  of  sound  and  perfect  memory,  i.  e.  that  he  have  a  competent  memory 
and  understanding  to  dispose  of  his  estate  with  reason. 

Swinb.  part  11,  §  1,  and  §  6. 

A  man  who  is  both  deaf  and  dumb,  and  is  so  by  nature,  cannot  make 

a  will ;  but  a  man  who  is  so  by  accident,  may  by  writing  or  signs  make 

a  will ;  and  so  may  a  man  who  is  deaf  or  dumb  by  nature  or  accident. 

Swinb.  part  11,  g  1  and  10 ;  and  see  Inst.  Jur.  Civ.  lib.  2,  tit.  12  ;  and  Yin.  Conini. 
Ibid.  ;  Huber,  prsel.  Ibid. 

And  so  also  may  a  man  that  is  blind. 

Swinb.  part  1,  §  1  and  11.    j3See  Stevens  v.  Vancleve,  4  Wash.  C.  C.  Rep.  262.0 


484     OF   WILLS  AND  TESTAMENTS. 

(B)  Who  are  capable  of  making  a  Will  and  Testament. 

But  an  alien  enemy,(a)  persons  convicted  and  attainted,  and  recusants 
convict,  cannot  make"  a  testament  of  lands  or  goods. 

Woou,  inst.  335.  ||(a)  That  is,  if  he  have  no  license  from  the  king.  See  1  Black . 
Com.  372  ;  Hargr.  Co.  Lit.  2  b,  n.  8.|| 

Neither  may  the  head,  or  any  of  the  members  oi  a  corporation,  make  a 
will  of  the  lands  or  goods  they  have  in  common,  for  they  shall  go  m  suc- 
cession. 

Fitz.  Abr.  Test. ;  1  Perk.  §  498. 

A  traitor  attainted,  from  the  time  of  the  treason  committed,  can  make  no 
will  of  his  lands  or  goods,  for  they  are  forfeited  to  the  king :  but  after  the 
time  he  has  a  pardon  from  the  king  for  his  offence,  he  may  make  a  will  of 
his  lands  and  goods  as  any  other  man. 

Swinb.  part  11,  §  12  ;  5  &  6  Ed.  6,  c.  11,  §  9.  So,  if  he  dies  before  attainder,  his 
will  is  o-ood.  Likewise  his  will  of  goods,  which  he  hath  as  executor  to  another,  is 
good,  for  they  are  not  forfeited.     Id.  ibid. 

A  man  who  is  attainted  or  convicted  of  felony  cannot  make  a  testament 
of  his  lands  or  goods,  for  they  are  forfeited  :  but,  if  a  man  be  only  indicted, 
and  die  before  the  attainder,  his  will  is  good  for  his  lands  and  goods  both ; 
and  if  he  be  indicted,  and  will  not  answer  upon  his  arraignment,  but  stand 
mute,  &c,  in  this  case  his  lands  are  not  forfeited,  and  therefore  he  may 
make  a  will  of  them. 

Swinb.  part  11,  §  13.  N.  B.  The  forfeiture  of  a  felon's  lands  relates  to  the  time  of 
the  fact  committed,  but  the  forfeiture  of  goods  to  the  time  of  the  judgment  given. 

And  if  a  man  kill  himself,  his  will,  as  to  his  goods  and  chattels,  is  void, 
but  as  to  his  lands  is  good,  |Jbecause  there  is  no  attainder.  || 

Plow.  Gl,  Hales  v.  Petit.  ||In  the  early  jurisprudence  of  Rome  suicide  did  not  invali- 
date the  testament,  and  it  was  resorted  to  occasionally  by  persons  apprehensive  of 
capital  punishment  in  order  to  avoid  the  forfeiture,  which  consequence  Tacitus  calls 
the pretiumfestinandi.  However,  this  was  altered  by  the  emperors,  and  the  will  of  a 
suicide  was  only  good  in  case  the  self-destruction  proceeded  from  impatience  of  pain  or 
loss  of  reason.     See  Cod.  Lib.  vi.  tit.  22,  §2.|| 

A  man  likewise  who  is  outlawed  in  a  personal  action  cannot  make  a  will 
of  his  goods  and  chattels,  so  long  as  the  outlawry  continues  in  force,  but 
of  his  lands  he  may  make  a  will.(a) 

Swinb.  part.  11,  §21.  \\(a)  The  outlawry  absolutely  forfeits  his  chattels  to  the 
king,  but  the  rents  of  the  lands  are  only  forfeited  after  inquisition  and  during  the  out- 
lawry. II 

But  note :  That  however  the  wills  of  traitors,  aliens,  felons,  and  out- 
lawed persons  are  void  as  to  the  king  or  lord  that  has  right  to  the  lands  or 
goods  by  forfeiture  or  otherwise :  yet  the  will  is  good  against  the  testator 
himself,  and  all  others  but  such  persons  only. 

Wood,  v.  1,  791  ;  Shep.  Abr.  part  4,  roc.  Test. 

And  note  also :  By  the  civil  law,  the  wills  of  divers  others,  as  excom- 
municate persons,  heretics,  usurers,  incestuous  persons,  sodomites,  libellers, 
and  the  like,  are  void  ;  but  by  our  law,  the  wills  of  such  persons,  at  least 
as  to  their  lands,  are  good  by  the  statutes  that  enable  men  to  devise  their 
lands. 

Wood,  v.  1,  791 ;  Shep.  Abr.  part  4,  voc.  Test. 

In  short,  all  persons  whosoever,  male  or  female,  old  or  young,  lay  or 
spiritual,  at  any  time  before  their  death,  whilst  they  are  able  to  speak  so 
distinctly,  or  write  so  plainly,  that  another  may  understand  them,  and  per- 
ceive that  they  understand  themselves,  may  make  wills  of  their  lands, 


OF  WILLS  AND  TESTAMENTS.     485 

(C)  What  are  the  Requisites  to  constitute  a  good  Will. 

goods,  and  chattels,  and  that  although  they  have  sworn  to  the  contrary ; 
and  none  are  restrained  of  this  liberty,  but  such  as  are  before  named. 
Wood,  v.  1,  791  ;  Shep.  Abr.  part  -1,  voc.  Test. 

£When  a  paper  purporting  to  be  a  will  is  wholly  written  by  the  testator 
niraself,  it  is  prima  facie  evidence  thrt  he  was  in  his  senses,  and  the  onus 
probandi  to  overthrow  the  presumption  lies  on  those  who  impugn  it. 

Temple  v.  Temple,  1  H.  &  M.  47G.g/ 

(C)  What  are  the  Requisites  to  constitute  a  good  Will. 

To  constitute  a  good  will  it  is  necessary, 

First,  That  the  testator  be  a  person  legally  capable  of  making  a  will. 
See,  "  Who  are  capable  of  making  a  Will  "  (B)  ante. 

Secondly,  That  there  be  a  person  to  take,  and  one  that  is  capable ;  for 
in  all  gifts  by  devise,  or  otherwise,  that  are  good,  there  must  be  a  donee  in, 
esse,  and  not  in  posse  only,  and  one  that  shall  have  capacity  to  take  the 
thing  given,  when  it  is  to  vest,  or  the  gift  shall  be  void. 

Shep.  Abr.  part  4,  pi.  13,  voc.  Test. 

And  hence  it  is,  that  where  the  devisee  of  lands  or  goods,  or  an  executor 
of  a  will,  doth  die  before  the  devisor,  or  him  that  makes  the  will,  the  devise 
and  will  is  void,  and  that  neither  the  heir  nor  executors  shall  have  the 
thing  devised. 

Shep.  Abr.  part  4,  pi.  13,  voc.  Test.  ,•  Plow.  345,  Breet  v.  Rigden. 

A  devise  to  the  wife  for  life,  and  after  to  the  children  unpreferred,  is  good. 

1  And.  60,  Amner  v.  Luddington. 

But  a  devise  by  a  man  to  his  heir  and  his  heirs  is  void. 

2  And.  11,  Garmyn  v.  Arstete. 

One  devised  his  leases  of  lands  to  B,  his  eldest  son,  except  the  sum  of 
140/.  to  be  paid  out  for  portions  for  his  daughters,  and  made  B  his  execu- 
tor ;  and  held  a  good  devise  to  them  after  this  manner,  and  that  the  daugh- 
ters might  sue  for  it  in  the  ecclesiastical  court,  or  court  of  equity. 

Shep.  Abr.  part  4,  pi.  13,  voc.  Test. 

If  one  devise  to  the  son  in  tail,  and  if  he  die  without  issue,  to  the  next 

of  his  name  ;  the  daughter  after  married  cannot  have  it,  for  she  is  not  of  his 

name. 

Cro.  Eliz.  532,  Bon  v.  Smith.  But  if  she  had  not  been  married,  she  would  have  had 
it,  as  being  next  of  the  name.     Id.  ibid. 

One  seised  of  a  manor  and  lands  deviseth  the  same  to  his  son,  and  after, 
by  another  part  of  his  will,  deviseth  part  of  the  same  to  another  of  his 
sons;  these  devises  are  good,  and  they  shall  be  joint-tenants. 

3  Leon.  11. 

Thirdly,  That  the  testator,  at  the  time  of  making  his  wall,  have  animum 
testandi,  i.  e.  a  mind  or  serious  intention  to  make  such  a  will. 
0  Sweet  v.  Boardman,  I  Mass.  258. tf 

For  it  is  the  mind,  not  the  words  of  the  testator,  that  gives  life  to  the 
will :  since  if  a  man  rashly,  unadvisedly,  incidently,  jestingly,  or  boastingly, 
and  not  seriously,  writes  or  says  that  such  a  one  shall  be  his  executor,  or 
have  all  his  goods,  or  that  he  will  give  to  such  a  one  such  a  thing ;  this  is 
no  will,  nor  to  be  regarded.  And  the  mind  of  the  testator  herein  is  to  be 
discovered  by  circumstances ;  for  if  at  the  time  he  be  sick,  or  set  himself 
seriously  to  make  his  will,  or  require  witnesses  to  bear  witness  of  it,  it  shall 

2s  2 


486     OF  WILLS  AND  TESTAMENTS. 

(C)  What  are  the  Requisites  to  constitute  a  good  Will. 

be  deemed  in  earnest ;  but,  if  it  be  by  way  of  discourse  only,  or  of  some- 
what he  will  do  hereafter,  or  the  like,  it  shall  be  taken  for  nothing. 

Swinb.  part  1,  §3;  /2  Harrison  v.  Rowan,  3  Wash.  C.  C.  R.  580;  Hoge  v.  Fisher, 
1  Pet.C.C.  R.  163;  Baker  v.  Lewis,  4  Rawle,  356;  Sterretv.  Douglass,  2  Yeates,  48  ; 
Dornick  v.  Reichenback,  10  S.  &  R.  84  ;  Stevens  v.  Vancleve,  4  Wash.  C.  C.  R.  262.# 

/3  A  testamentary  paper  began  as  follows :  "  My  wish,  desire,  and  intention 
now  is,  that  if  I  should  not  return,  (which  I  will, no  preventing  providence,) 
what  I  own  shall  be  divided  as  follows,"  &c.  It  then  proceeded  of  the 
testator's  property,  with  reference  to  the  state  of  his  family,  as  it  then  ex- 
isted, supposing  his  wife  to  be  pregnant.  He  went  on  the  proposed  journey, 
returned  home,  and  died,  about  a  month  afterwards.  Held,  that  the  dis- 
posal was  subject  to  the  condition  of  his  dying  away  from  home,  and  there- 
fore that  the  paper  ought  not  to  be  admitted  to  probate. 

Todd's  will,  2  Watts  &  S.  145. 

A  mistake  in  drafting  a  will  does  not  render  it  void. 

Comstoek  v.  Hadelyme  Ecclesiastical  Society,  8  Conn.  254. $ 

Fourthly,  That  the  mind  of  the  testator  in  making  his  will  be  free,  and 
not  moved  by  fear,  fraud,  or  flattery. 

For  when  a  testator  is  moved  to  make  his  testament  by  fear,  or  circum- 
vented by  fraud,  or  overcome  by  some  immoderate  flattery,  the  same  is 
void,  or  at  least  voidable  by  exception  ;  and  therefore,  if  a  man,  by  occa- 
sion of  some  present  fear  or  violence,  or  threatening  of  future  evils,  does 
at  the  same  time,  or  afterwards  by  the  same  motive,  make  a  will,  it  is  void, 
not  only  as  to  him  that  puts  him  so  in  fear,  but  as  to  all  others,  although  the 
testator,  confirms  it  with  an  oath  ;  but  if  the  cause  of  fear  be  some  vain 
matter,  or,  being  weighty,  be  removed,  and  the  testator  afterwards,  wrhen 
the  fear  is  past,  confirm  the  testament,  in  this  case,  perhaps,  the  will  may 
be  good.  And  if  a  man,  by  occasion  of  some  fraud(a)  or  deceit,  be  moved 
to  make  a  will,  if  the  deceit  be  such  as  may  move  a  prudent  man  or  woman, 
and  if  the  end  be  evil  also,  the  will  is  void,  or  voidable  at  the  least ;  but, 
if  the  deceit  be  light  and  small,  or  if  it  be  to  a  good  end,  as  where  a  man 
!s  about  to  give  all  his  estate  to  some  lewd  person,  from  his  wife  and  chil- 
dren, and  they  persuade  the  testator,  that  the  lewrd  fellow  is  dead,  or  the 
like,  and  thereby  procure  him  to  give  his  estate  to  them,  this  is  a  good 
will.  And  one  may,  by  honest  intercessions,  and  modest  persuasions, 
procure  another  to  make  himself  or  a  stranger  executor  to  him,  or  the  like, 
and  this  will  not  hurt  the  will.  Also,  a  man  may  use  fair  and  flattering 
speeches  to  move  the  testator  to  make  his  will,  and  to  give  his  estate  unto 
himself,  or  some  friend  of  his ;  except  it  be  in  case  where  the  flatterer  first 
threatens  him,  or  puts  him  in  fear,(6)  or  to  his  flattery  joins  fraud  and  deceit ; 
or  where  the  testator  is  a  person  of  weak  judgment,  or  under  the  govern- 
ment of  the  flatterer,  or  in  danger  from  him  ;  as  when  the  physician  shall 
persuade  his  patient  under  his  hand  to  make  his  will,  and  give  his  estate  to 
himself  ;(c)  or  the  wife  attending  on  her  husband  in  his  sickness  shall  neglect 
nim,  and  in  the  mean  time  flatter  him  to  give  her  all :  or  where  the  per- 
suader is  importunate,  and  will  have  no  denial :  or  when  there  is  another 
testament  made  before ;  for,  m  all  these  cases,  the  will  will  be  in  danger 
to  be  avoided.  If  I  be  much  privy  to  another  man's  mind,  and  he  tells 
me  often  in  his  health  how  he  intends  to  settle  his  estate,  and  he  being  sick, 
I,  of  my  own  head,  draw  a  will  according  to  his  mind,  before  declared  to 
me,  and  bring  it  to  him,  and  ask  him,  whether  this  shall  be  his  will  or  no, 
and  he  considers  of  it,  and  then  delivers  it  back  to  me,  and  says,  Yes ;  this 


OF  WILLS  AND  TESTAMENTS.      487 

(D)  Of  Wills  in  Writing. 

:s  a  food  will.  But  if  otherwise,  some  friends  of  a  sick  man,  of  their  own 
Leeds,  sheui  make  a  will,  and  bring  it  to  a  man  in  extremity  of  sickness, 
ana  read  it  to  him,  and  ask  hirn,  whether  this  shall  be  his  will,  and  he  sa)S 
Yes,  yes  ;  or  if  a  man  be  in  great  extremity,  and  his  friends  press  him  much, 
and  so  wrest  words  from  him, — especially  if  it  be  in  advantage  of  them,  or 
some  friends  of  theirs  :  in  these  cases  the  wills  are  very  suspicious. 

Swinb.  part  11,  §25,  and  part  7,  §2,3,  and  4;  &  Brown  v.  Molliston,  3  Whart.  129.gr 
(a)  iV.  B.  Fraud  in  wills  of  lands  is  only  examinable  in  the  courts  of  common  law,  not 
of  chancery.  Swinb.  478.  And  fraud  in  a  will  of  personal  estate  is  only  examinable  in 
the  ecclesiastical  court.  2  P.  Wms.  286,  Steventon  v.  Gardiner  et  al.  ||As  to  the 
effect  of  fraud  in  setting  aside  a  will,  see  post,  (G),  and  see  Mountain  v.  Bennett,  1  Cox 
R.  353. ||  (6)  For  in  that  case  it  is  to  be  presumed,  that  the  testator  is  rather  moved  by 
fear,  than  by  the  subsequent  flattery,  (c)  For  the  law  will  presume  that  the  testator 
did  it  lest  the  physician  should  neglect  or  forsake  him. 

@A  may  by  fair  argument  and  persuasion  induce  another  to  make  a  will 
even  in  his  own  favour. 

Miller  v.  Miller,  3  S.  &  R.  2G9.     But  see  Elliott's  will,  2  J.  J.  Marsh.  342.# 

Fifthly,  That  the  will  be  made  in  the  form  prescribed  by  law. 

#A  will  of  personal  property  must  be  executed  according  to  the  laws  of 
the  place  where  the  testator  had  his  domicil  at  the  time  of  his  death :  if  not 
so  executed,  it  will  not  pass  personal  property  in  a  foreign  country,  although 
executed  according  to  the  laws  of  that  country. 

Desesbats  v.  Berquier,  1  Binn.  336. g/ 

The  forms  which  the  law  prescribes  differ  according  to  the  species  of 
property  which  is  to  be  disposed  of,  that  is,  whether  it  be  real  or  personal. 
And  this  leads  us  to  consider  the  several  kinds  of  wills  and  testaments,  and 
the  circumstances  requisite  to  each. 

(D)  Of  Wills  in  Writing. 

There  are  two  sorts  of  wills  or  testaments :  First,  in  writing,  which  is, 
where  the  mind  of  the  testator,  in  his  lifetime,  by  himself,  or  some  other 
by  his  appointment,  is  put  in  writing ;  or,  secondly,  by  word,  or  without 
writing,  which  is,  where  a  man  is  sick,  and  for  fear  that  death,  or  want  of 
memory  or  speech,  should  surprise  him,  that  he  should  be  prevented,  if 
he  stayed  the  writing  of  his  testament,  desires  his  neighbours  and  friends 
to  bear  witness  of  his  last  will,  and  then  declares  the  same  presently,  by 
word,  before  them )  and  this  is  called  a  nuncupative  or  nuncupatory  will  or 
testament ;  and  this  being  after  his  death  proved  by  witnesses,  and  put  in 
writing  by  the  ordinary,  is  of  as  great  force  for  any  other  thing,  but  land,(«) 
as  when  at  the  first  in  the  life  of  the  testator  it  is  put  in  writing.  See  of 
Nuncupative  Wills,  post,  (E). 

1  Inst.  Ill  ;  Perk.  §  476;  Wood,  part  1,  787.  (a)  In  some  cities  and  boroughs 
lands  may  pass  as  chattels  by  will  nuncupative  or  parol,  without  writing.  1  Inst.  111. 
[But  not  without  writing,  and  signed  and  attested  in  like  manner  as  wills  of  other  lands, 
since  the  stat.  29  Car.  c.  3.] 

A  codicil  is  also  in  writing  or  by  word,  as  a  will  or  testament  is. 
1  Inst.  111. 

The  civilians  have  other  divisions  of  wills  and  testaments,  solemn  and 
unsolemn,  privileged  and  unprivileged,  whereof  the  common  law  makes 
no  mention. 

By  the  common  law,  no  lands  or  tenements,  (except  by  particular  cus- 
tom,) were  devisable  by  any  last  will  or  testament,  neither  could  they  be 


488      OF   WILLS  AND  TESTAMENTS. 

(D)  Of  Wills  in  Writing.     {Of  Lands.) 

transferred  from  one  to  another,  but  by  solemn  livery  of  seisin,  matter  of 
record,  or  sufficient  writing.(a)  Because  it  was  presumed,  that  the  testator 
would  do  that  in  extremis  that  he  would  not  do  in  his  health ;  that  it  pro- 
ceeded from  the  distemper  of  his  mind,  by  the  anguish  of  his  disease,  or 
by  sinister  persuasion,  to  which  in  his  sickness  he  was  more  subject. 

1  Inst.  Ill  b  ;  1  Roll.  Abr.  608.  (a)  The  true  reason  seems  to  be  from  the  nature 
of  the  feudal  tenure  and  the  relation  that  was  first  established  betwixt  the  lord  and  his 
tenant.  For  though  donations  after  length  of  time  were  made  to  the  tenant  and  his 
heirs,  or  the  heirs  males  or  females  of  his  body,  under  certain  duties  and  services  ex- 
pressly reserved,  or  which  the  law  created  ;  and  though  the  word  heirs,  &c,  be  words 
of  limitation,  and  appropriated  to  measure  out  the  length  or  continuance  of  the  estate; 
yet  they  were  always  understood  the  heirs  of  the  present  tenant,  who  being  liable  to 
the  same  services  when  they  came  into  the  tenancy,  the  lord  was  to  have  the  tuition 
and  education  of  such  heirs,  in  case  they  happened,  by  reason  of  their  minority,  to  be 
incapable  of  performing  the  services,  that  so  he  might,  by  his  care  and  discipline, 
secure  to  himself  tenants  always  capable  thereof,  either  in  their  own  persons,  if  they 
happened  to  be  males,  or  by  proper  marriage  with  his  tenants,  if  they  proved  to  be 
females;  and,  therefore,  by  no  act  of  the  tenant's  could  he  dispose  of  the  feud,  so  as  to 
defeat  the  lord  of  the  advantages  of  his  seigniory.  And  hence  it  was,  that  a  tenant 
could  not  devise  it  even  to  his  own  heir,  so  as  to  make  him  a  purchaser  thereof;  for 
then  he  coming  in  not  by  the  donation  of  the  lord,  but  the  disposition  of  the  tenant, 
though  he  remained  liable  to  the  naked  services,  yet  the  lord  lost  the  advantage  of  ward- 
ship, marriages,  &c,  which  were  annexed  only  to  those  who  came  in  upon  the  terms 
of  his  own  donation  by  descent.     1  Eq.  Cas.  Abr.  401. 

But  this  being  altered  by  statute,  we  are  next  to  inquire — 

I.    What  shall  be  a  good  Will  in  Writing  to  pass  Lands  and  Tenements. 

The  stat.  32  H.  8,  c.  1,(6)  usually  called  the  Statute  of  Wills,  enacts, 
That  every  person  having  manors,  lands,  &c.,(c)  shall  have  power  to  give, 
dispose,  will,  and  devise  by  will,(d)  in  writing  or  otherwise,(e)  by  act  exe- 
cuted in  his  lifetime,  all  his  said  manors,  &c. ;  any  law,  statute,  &c,  tov 
the  contrary  notwithstanding. 

(b)  There  have  been  several  resolutions  concerning  wills  made  pursuant  to  this  sta- 
tute since  the  making  thereof;  but  as  the  statute  29  Car.,  which  is  now  the  proper  pat- 
tern to  follow,  has  altered  the  forms  by  requiring  more  ceremony  and  greater  exactness, 
it  will  be  sufficient  barely  to  mention  some  of  the  cases  on  this  statute  of  32  H.  8.  (c)  That 
the  lands  must  be  sua,  and  therefore  lands  purchased  after  the  will  is  made  will  not 
pass.  Vide  Plow.  344.  [Sed  vide  2  Ves.  jun.  427.]  ||A  codicil  confirming  will  of 
lands  in  general  words  will  pass  lands  purchased  between  making  the  will  and  codicil. 
See  7  Term  R.  487. I|  (d)  A  devise  of  an  authority  to  executors  to  sell,  is  within  the 
act.  Moor,  341.  (e)  A  man  beyond  sea  wrote  a  letter,  in  which  he  declared  his  will 
lobe  that  his  land  should  go  in  such  a  manner;  and  adjudged  a  good  will.  Moor, 
177.  So,  if  a  man  had  ordered  one  to  make  his  will,  and  thereby  to  devise  Whiteacre 
to  A  and  his  heirs,  and  Blackacre  to  C  and  his  heirs,  and  he  had  written  the  devise  to 
A,  but  before  the  devise  to  C  was  written,  the  devisor  died  ;  yet  as  to  A  this  had  been 
a  good  devise.  3  Co.  31  b.  So,  a  will  was  held  good  where  a  lawyer  took  only  short 
notes,  with  design  to  reduce  it  into  form,  which  he  afterwards  did,  but  the  devisor  died 
.  before  it  was  read  to  him.  1  And.  34.  A  will  wrote  without  the  appointment  of  the 
testator,  if  read  to  him,  and  approved  by  him,  was  held  good,  signing  and  sealing  not 
oeing  necessary.     Cro.  Eliz.  100;  Dyer,  72  a;  2  Leon.  35. 

"And  further,  by  the  statute  of  frauds  and  perjuries,  29  Car.  2,  c.  3 
§  5,  all  devises  and  bequests  of  any  lands  or  tenements  devisable  by  the 
statute  of  wills,  or  by  any  particular  custom,  shall  be  in  writing,  and 
signed  by  the  party  devising  the  same,  or  some  other  person  in  his  pre- 
sence, and  by  his  express  directions,  and  shall  be  attested  and  subscribed 
in  the  presence  of  the  said  devisor  by  three  or  four  credible  witnesses,  or 
else  they  shall  be  utterly  void  and  of  none  effect. 

"And  by  §  G,  no  devise  in  writing  of  lands,  tenements,  or  hereditaments 


OF  WILLS  AND  TESTAMENTS.     489 

(D)  Of  Wills  in  Writing.     (Of  Lands.) 

or  any  clause  thereof,  shall  be  revocable,  other  than  by  some  other  will  or 
codicil  in  writing,  or  other  writing  declaring  the  same,  or  by  burning,  can- 
celling, tearing,  or  obliterating  the  same  by  the  testator  himself,  or  in  his 
presence,  and  by  his  directions  and  consent :  but  all  such  devises  and  be- 
quests shall  remain  in  force  until  the  same  be  burnt,  &c,  in  manner  afore- 
said, or  unless  the  same  be  altered  by  some  other  will  or  codicil  in  writino-, 
or  other  writing  of  the  devisor,  signed  in  presence  of  three  or  four  wit- 
nesses, declaring  the  same." 

Therefore,  if  a  will  be  of  lands  or  tenements,  it  must  be  in  writing,  and 
it  must  be  committed  to  writing  at  the  time  of  the  making  thereof;  and  it 
is  not  sufficient  that  it  be  put  in  writing  after  the  death  of  the  testator,  being 
first  made  by  word  of  mouth  only,  for  then  it  is  but  a  nuncupative  still. 
But,  if  the  will  be  first  made  by  words  of  mouth,  and  be  afterwards  written 
and  then  brought  to  the  testator,  and  he  approve  of  it  for  his  will :  or  if  the 
testator,  when  he  declares  his  mind,  appoint  that  the  same  shall  be  written, 
and  thereupon  the  same  is  written  accordingly  in  the  lifetime  of  the  testa- 
tor, these  are  good  wills  of  land,  and  as  good  as  if  they  had  been  written 
at  the  first.  Therefore,  if  one  be  very  sick,  and  another  come  to  him  and 
ask  him  whether  his  wife  shall  have  his  lands,  and  he  say,  Yes ;  and  a 
clerk  being  present,  put  this  in  writing,  without  any  precedent,  command- 
ment, or  subsequent  allowance  of  the  sick  man,  this  is  no  good  will  of  the  land. 
So,  if  one  declares  his  whole  mind  before  witnesses,  and  sends  for  a  notary 
to  write  it,  and  dies  before  he  comes,  and  the  notary  writes  it  after  his 
death,  this  is  no  good  will  of  the  lands,  but  a  good  nuncupative  will  for  the 
goods  and  chattels,  except  the  testator  declares  his  mind  to  be,  that  it  shall 
not  be  his  will  unless  it  be  put  in  wTriting ;  for  then,  perhaps,  it  may  not 
be  a  good  will,  even  for  his  goods  and  chattels.  So,  if  he  that  writes  the 
will  cannot  hear  the  party  speak,  and  another,  that  doth  stand  by  the  sick 
man,  tells  him  wThat  he  says ;  in  this  case,  if  there  be  none  others  present 
to  prove  that  he  reported  the  very  words  of  the  sick  man,  this  will  be  no 
good  will  of  the  land.  But  if  a  notary  takes  directions  from  the  sick  man 
for  his  will,  and  after  goes  away  and  writes  it,  and  then  brings  it  again 
and  reads  it  to  the  testator,  and  he  approves  it ;  or,  if  it  be  written  from 
his  mouth  by  the  notary  according  to  his  mind,  and  his  mind  were  to  have 
it  written,  although  it  be  not  showed  or  read  to  him  afterwards,  these  are 
good  testaments.  So,  if  the  notary  only  take  certain  rude  notes  or  direc- 
tions from  the  sick  man,  which  he  agrees  to,  and  they  be  afterwards  writ- 
ten fair  in  his  lifetime,  and  not  showed  to  him  again,  or  not  written  fair 
until  after  his  death  ;  these  are  good  wills  of  lands.  But  if  a  sick  man  bid 
the  notary  make  a  will  of  his  lands,  but  do  not  tell  him  how,  and  the  notary 
make  a  devise  of  it  after  his  own  mind,  this  is  no  good  will :  and  yet  if  it 
be  after  read  unto  him,  and  approved  by  the  testator,  it  may  be  good.  If 
a  will  be  found  written  in  the  testator's  house,  and  not  known  by  whom, 
and  it  be  read  unto  and  approved  by  the  testator,  this  is  not  a  good  will 
in  writing  for  lands  and  goods. 

Wood,  part  1,  798  ;  Dy.  72;  Plow.  345. 

Having  shown  how  far  writing  is  necessary,  it  remains  to  consider, 

1.  In  what  Language  and  Hand  a  Will  may  be  written. 

It  is  not  material  in  what  matter  or  stuff,  whether  in  paper  or  parchment, 
nor  in  what  language,  whether  in  Latin,  French,  Dutch,(a)  or  any  other 
tongue,  or  in  what  hand  or  letters,  whether  in  secretary  hand,  Roman  hand, 

Vol.  X.— 62 


490     OF  WILLS  AND  TESTAMENTS. 

(D)  Of  Wills  in  Writing.     {Signing,  Attestation,  $rc.) 

or  court  hand, (6)  or  in  any  other  hand,  a  will  be  written,  so  that  it  be  fair 
and  legible,  that  it  be  read  and  understood  :  neither  is  it  material  whether  the 
same  be  written  at  large,  or  by  notes  or  characters  usual  or  unusual,  as 
XXs.  for  twenty  shillings,  or  when  the  figure  1  is  used  instead  of  the  letter 
A,  if  it  be  usual  in  the  testator's  writing,  or  the  like,  for  the  will  is  good 
notwithstanding.  So  also,  if  some  words  be  omitted,  or  improper  sentence 
used,  when  the  intent  and  meaning  is  apparent ;  as,  where  a  man  says, 
"  I  make  my  wife  of  this  my  last  will  and  testament,"  leaving  out  the 
word  executrix,  yet  the  will  is  good  :  and  this  shall  be  understood.  But 
if  it  be  so  done  as  it  cannot  be  read,(c)  or  by  reading  the  mind  of  the  testa- 
tor cannot  be  known,  then  the  will  is  void  and  of  no  force  ;  in  like  manner 
as  a  nuncupative  will  is,  when  the  words  spoken  are  so  ambiguous,  ob- 
scure, and  uncertain,  that  thereby  the  meaning  of  the  testator  cannot  be 
known  or  understood. 

Swinb.  part  4,  §  28.  (a)  But  N.  B.  It  must  be  so  framed  as  to  pass  estates  accord- 
ing to  the  rules  of  our  law.  1  Vern.  85,  Bovey  v.  Smith.  \\{b)  Though  written  in 
pencil,  that  circumstance  only  will  not  prevent  a  testamentary  paper  being  received. 
1  Phil.  R.  1  ;  2  Phil.  173. ||  (c)  Where  a  will  was  written  so  blindly  that  it  was  scarce 
legible,  and  the  legacies  were  in  figures,  it  was  referred  to  a  master  to  examine  what 
those  legacies  were,  and  he  to  be  assisted  by  such  as  were  skilled  in  the  art  of  writing. 
1  P.  Wms.  425,  Masters  v.  Masters. 

We  now  proceed  to  treat, — 

2.  Of  the  Circumstances  of  Signing,  Attestation,  Publication,  &c. 

The  clauses  of  the  29  Car.  2,  above  recited,  having  rendered  those  cir- 
cumstances necessary,  it  is  next  to  be  inquired,  When,  in  legal  construc- 
tion, these  requisites  shall  be  deemed  to  have  been  complied  with  ?  which 
may  be  best  collected  by  attention  to  the  following  cases. 

It  has  been  held,  that  sealing  a  will  is  a  signing  within  the  statute  of 

frauds  and  perjuries. 

2  Str.  764,  Warneford  v.  Warneford  ;  [Gryle  v.  Gryle,  2  Atk.  176;  serf  vide  Smith 
v.  Evans,  1  Wils.  313,  and  Right  v.  Price,  Doug].  244  ;]  ||Ellis  v.  Smith,  1  Ves.  jun. 
11 ;  Wright  v.  Wakeford,  17  Ves.  459,  contra. || 

||"  I,  John  Thomas,  do  make  this  my  will,"  is  equivalent  to  a  signature. 
Morison  v.  Tumour,  18  Ves.  183. 

Whether  a  will,  executed  by  a  person  not  able  to  write,  by  making  his 
mark,  is  good,  does  not  appear  to  be  expressly  decided;  but  as  it  has  been 
held,  that  the  mark  of  a  witness  in  such  case  is  a  sufficient  signing,  the  same 
would  no  doubt  be  held  as  to  a  mark  by  the  testator. 

Harrison  v.  Harrison,  8  Ves.  185;  Addy  v.  Grix,  Ibid.  504  ;  Wright  v.  Wakefield, 
17  Ves.  459  ;  Rob.  on  Wills,  94. || 

/3  Where  a  testator's  hand  was  guided  by  another  person  with  his  consent, 
and  he  afterwards  acknowledged  it ;  held,  that  in  point  of  law  this  was  the 
act  of  the  testator. 

Stevens  v.  Vancleve,  4  Wash.  C.  C.  R.  262.g/ 

But  a  will  in  writing  need  not  be  sealed  ;  but  it  is  added, — qucere,  if  it 
be  good  to  pass  freehold  or  inheritance  ? 

Perk.  477;  {1  Dall.  94,  Hight  v.  Wilson.}  ||Sealing  is  not  indispensable,  nor  is  it 
sufficient  without  signing.     17  Ves.  459. || 

Where  the  testator  owns  his  hand  before  the  witnesses  who  subscribe  the 
will  in  the  testator's  presence,  the  will  is  good,  though  all  the  witnesses  did 
not  see  the  testator  sign ;  and  it  is  observable  that  the  statute   of  frauds 


OF  WILLS  AND   TESTAMENTS.      49] 

(D)  Of  Wills  in  Writing.    (Signing,  Attestation,  ^c.) 

does  not  say,  the  testator  shall  sign  his  will  in  the  presence  of  three  wit- 
nesses ;  but  requires  these  three  things :  first,  That  the  will  should  be  ir. 
writing.  Secondly,  That  it  should  be  signed  by  the  testator.  And,  thirdly, 
That  it  should  be  subscribed  by  three  witnesses  in  the  presence  of  the 
testator. 

3  P.  Wms.  254,  Stonehouse  et  ux.  v.  Evelyn;  [Grayson  v.  Atkinson,  2  Ves.  454. 
S.  P.]  ;  {1  Ves.  J.  11,  Ellis  v.  Smith;}  ||Addyv.  Grix,  8  Ves.  J.  504,  ace;  Westbeech 
v.  Kennedy,  1  Ves.  &  Bea.  363. || 

/3An  attestation  in  the  same  room  with  the  testator  is  a  sufficient  sub- 
scription in  his  presence. 

A.  Howard's  will,  5  Monr.  202.g/ 

Nevertheless,  a  will  has  been  held  to  have  been  well  executed,  though 
it  was  not  mentioned  in  the  attestation  to  have  been  signed  in  the  presence 
of  the  testator. 

2  Stra.  1109,  Croft  v.  Pawlet ;  |]  Brice  v.  Smith,  Willes  R.  l.[|  {It  is  not  necessary, 
in  Pennsylvania,  that  there  should  be  subscribing  witnesses  to  a  will.  1  Dall.  94, 
Hight  v.  Wilson.} 

{Where  one  only  of  the  witnesses  subscribes  his  name,  and  the  other  two 
attest  the  will  by  setting  their  marks,  the  attestation  is  good  within  the  statute. 

8  Ves.  J.  185,  Harrison  v.  Harrison;  Ibid.  504,  Addy  v.  Grix. 

It  is  not  necessary  to  the  validity  of  the  execution  of  a  will  of  lands  by 
a  blind  man,  that  it  should  be  read  over  to  him  in  the  presence  of  the  at- 
testing witnesses. 

5  Bos.  &  Pul.415,  Longchamp  v.  Fish.} 

If  a  will  is  attested  by  three  witnesses,  who  severally  signed  their  names, 
not  being  present  together  ;  yet  each  signing  being  in  the  presence  of  the 
testator,  makes  it  a  good  will  within  the  statute. 

2  Ch.  Cas.  109,  Anon.  [So,  Jones  v.  Luke,  Feb.  1,  1742,  B.  R.,  2  Atk.  176,  by 
Sanders'  notes;  2  Ves.  455,  S.  G.j  ||See  the  Roman  law  on  this  point  stated,  Rob. 
on  Wills,  p.  124.|| 

But  if  a  man  subscribes  and  publishes  his  will  in  the  presence  of  two 
witnesses,  and  they  subscribe  it  in  his  presence,  and  after  makes  a  codicil 
in  writing,  reciting  that  he  had  made  a  former  will  and  confirmed  the  same, 
(except  what  was  excepted  by  the  codicil,)  and  declares,  that  the  codicil 
shall  be  taken  as  part  of  his  will,  and  publishes  it  in  the  presence  of  one 
of  the  witnesses  to  the  first  will  and  another  new  witness  ;  this  is  not  a  good 
will,  for  there  were  not  three  subscribing  witnesses  in  the  presence  of  the 
testator ;  and  one  of  the  witnesses  to  the  codicd  never  saw  the  will.  Ad- 
judged, though  it  was  objected,  the  will  and  codicil  made  but  one  will, 
and  the  circumstance  of  three  witnesses  wanting  to  complete  the  will  was 
perfected  by  the  codicil. 

3  Mod.  262,  Lea  &  Lib. 

So,  if  a  man  makes  a  will  in  several  pieces  of  paper,  and  there  are  three 
witnesses  to  the  last  paper,  and  none  of  them  ever  saw  the  first ;  this  is  not 
a  good  will. 

3  Mod.  263,  Lea  &  Lib. 

||  An  unattested  testamentary  paper  cannot  pass  an  interest  in  real  estate, 
unless  it  be  clearly  referred  to  in  a  will  duly  attested,  so  that  there  can  be 
no  doubt  as  to  the  paper  referred  to.  It  cannot  be  incorporated  in  the  will 
merely  because  it  is  found  in  the  same  cover  therewith,  endorsed  as  being 
the  party's  will. 

Smart  v.  Prujean,  6  Ves.  560 ;  and  see  Wilkinson  v.  Adam,  1  Ves.  &  Bea.  445 ; 
De  Bathe  v.  Fingal,  16  Ves.  167.11 


492     OF  WILLS  AND  TESTAMENTS. 

(D)  Of  Wills  in  Writing.     (Signing,  Attestation,  §c.) 

£When  there  is  a  clause  of  attestation  to  a  paper,  but  it  is  not  attested, 
it  is  not  conclusive  evidence  of  the  abandonment,  by  the  testator,  of  his  in- 
tention that  it  should  operate  as  a  will. 

Jones  v.  Kea,  4  Dev.  301. g/ 

[It  was  proved  that  C  made  his  will,  consisting  of  two  sheets  of  paper, 
all  of  his  own  handwriting,  and  signed  his  name  at  the  bottom  of  each 
page ;  and  that  he  also  made  a  codicil  of  his  own  handwriting  upon  one 
single  sheet,  and  called  in  H,  showed  him  both  the  sheets  of  his  will,  and 
his  signature  to  every  page  thereof,  and  told  him  that  was  his  will ;  and 
then  showed  H  the  codicil,  and  desired  him  to  attest  both  the  will  and  the 
codicil :  which  he  did,  in  the  presence  of  the  testator,  and  in  the  manner 
appearing  upon  the  face  of  the  instrument,  and  then  went  out  of  the  room. 
V  and  L  came  in  immediately  afterwards,  and  the  devisor  showed  them  the 
codicil,  and  the  last  sheet  of  the  will,  and  sealed  both  before  them.  C  then 
took  each  of  them  up  severally  as  his  act  and  deed  for  the  purposes  therein 
mentioned.  Then  the  witnesses  attested  the  same  in  the  testator's  presence, 
but  never  saw  the  first  sheet  of  the  will ;  nor  was  that  sheet  produced  to 
them  ;  nor  was  the  same,  or  any  other  paper,  upon  the  table.  Both  the 
sheets  of  the  will  were  found  with  the  codicil  in  the  testator's  bureau,  after 
nis  death,  all  wrapped  up  in  one  piece  of  paper;  but  the  two  sheets  of  the 
will  wrere  not  pinned  together.  And  the  question  upon  these  facts  was, 
Whether  this  will  was  duly  executed  according  to  the  statute  of  frauds  ? 
After  three  several  arguments  before  the  Court  of  King's  Bench,  and  one 
argument  before  all  the  judges  in  the  Exchequer  Chamber,  Lord  Mansfield 
delivered  the  judgment.  His  lordship  said,  that  the  question  made  at  the 
trial,  and  submitted  by  the  case,  as  it  then  stood,  turned  upon  the  solemnity 
of  the  execution;  and  they  were  of  opinion,  "that  the  due  execution  of 
this  will  could  "  not  be  come  at,  in  the  method  wherein  the  matter  was 
then  put ;"  that  if  this  were  considered  as  a  special  verdict,  they  thought 
it  was  defectively  found  as  to  the  point  of  the  legal- execution  of  the  will ; 
that  every  presumption  ought  to  be  made  by  a  jury,  in  favour  of  such  a  will, 
when  there  was  no  doubt  of  the  testator's  intention  ;  and  that  they  all 
thought  the  circumstances  sufficient  to  presume  that  the  first  sheet  was  in  the 
room :  and  that  the  jury  ought  to  have  been  so  directed  :  but,  upon  a  spe- 
cial verdict,  nothing  could  be  presumed  ;  therefore  they  were  all  of  opinion, 
"  that  it  ought  to  be  tried  over  again ;"  and  if  the  jury  should  be  of  opinion, 
"that  it  was  then  in  the  room,"  they  ought  to  find  for  the  will  generally, 
and  they  ought  to  presume,  from  the  circumstances  proved,  "that  the  will 
was  in  the  room." 

Bond  et  al.  v.  Seawell  et  al.,  3  Burr.  1773 ;  S.  C,  Black.  R.  407,  422,  454.] 

A  will  of  lands  was  originally  executed  in  the  presence  of  two  witnesses 
only,  and  at  the  distance  of  four  years  afterwards,  the  testator  re-executed 
his  will,  by  drawing  a  pen  on  the  old  strokes,  in  the  presence  of  one  other 
person,  who  likewise  subscribed  his  name  as  a  witness  to  it.  Upon  an 
ejectment,  brought  by  the  heir  at  law,  and  on  a  special  verdict,  it  was  deter- 
mined by  the  court,  that  this  will  was  properly  executed,  and  attested  un- 
der the  statute  of  frauds  and  perjuries. 

MS.  Rep.  Jones  v.  Dale,  B.  R.  Hil.  16  G.  2 ;  [2  Atk.  176,  by  Sanders,  notes,  S.  C. ; 
2  Ves.  455,  S.  C] 

It  was  determined  by  the  Lord  Chancellor,  that  a  will  is  well  proved, 
though  the  witnesses  did  not  see  the  testator  sign  his  name  ;  if  he  declared 


OF  WILLS  AND  TESTAMENTS.      493 

(D)  Of  Wills  in  Writing.     {Signing,  Attestation,  $rc.) 

it  to  be  his  handwriting  to  them,  and  they  attested  it  in  his  presence,  and 

in  the  presence  of  each  other. 

MS.  Rep.  Grayson  v. ,  in  Cane.  25  &  26  G.  2  ;   [Grayson  v.  Atkinson,  2  Ves. 

454,  S.  C. ;]   ||Addy  v.  Grix,  fi  Ves.  504 ;  Westbeech  v.  Kennedy,  1  Ves.  &  B.  362.|] 

A  will  was  attested  by  three  witnesses,  in  the  presence  of  the  testator 
and  of  each  other,  but  the  testator  did  not  write  his  name  or  put  his  seal 
in  their  presence,  but  pointed  to  the  paper  and  said,  that  was  his  will,  and 
he  had  wrote  it,  and  that  his  name,  William  Ellis,  subscribed,  was  his 
writing  and  name ;  and  laid  his  hand  on  the  seal,  and  said,  that  was  his 
seal.  On  a  question  in  this  cause,  Whether  this  will,  so  executed,  was 
good  as  a  revocation  of  a  former  will,  under  the  sixth  section  of  the  statute 
of  frauds  ?  Lord  Hardwicke,  assisted  by  Lord  C.  J.  Willes,  Strange, 
Master  of  the  Rolls,  and  the  Chief  Baron,  held  clearly  that  it  was  ;  it  not 
being  doubted  but  that  it  was  good  as  an  original- mil,  according  to  the 
authorities  determined  on  this  head,  that  the  owning  it  to  be  his  handwrit- 
ing wras  sufficient. 

MS.  Rep.  Ellis  v.  Smith,  Hil.  &  Mich.  27  G.  2 ;  [Dougl.  244,  notes,  S.  C. ;]  !|1  Ves. 
jun.  11  ;[|  Dormer  v.  Thurland,  2  P.  Wras.  509. 

||  So  where  a  will  of  lands  was  subscribed  by  three  witnesses  in  the  pre- 
sence and  at  the  request  of  testator,  it  was  held  sufficiently  attested  within 
the  statute,  although  none  of  the  witnesses  saw  the  testator's  signature, 
and  only  one  of  them  knew  what  the  paper  was. 

White  v.  Trustees  of  the  British  Museum,  6  Bing.  310.|| 

The  testator  desired  the  witnesses  to  go  into  another  room,  seven  yards 
distant,  to  attest  his  will,  in  which  there  was  a  window  broken,  through 
which  he  might  see  them.  And  it  was  held,  that  this  will  was  well  at- 
tested according  to  the  statute  of  frauds  :  for  though  the  statute  requires 
attesting  in  the  testator's  presence,  to  prevent  another  will  from  being  ob- 
truded in  the  place  of  a  true  one,  yet  it  is  enough  if  the  testator  might  see. 
It  is  not  necessary  that  he  should  actually  see  them  signing  ;  for,  at  that 
rate,  if  a  man  should  but  turn  his  back,  or  look  off,  it  would  vitiate  the 
will :  and  the  signing  was  in  the  view  of  the  testator ;  he  might  have  seen 
it,  and  that  is  enough.  So,  if  the  testator,  being  sick,  should  be  in  bed 
and  the  curtain  drawn. 

2  Salk.  688,  Shires  v.  Glascock.  [In  Casson  v.  Dade,  1  Bro.  Ch.  Rep.  99.  Lord 
Thurlow,  relying  on  the  authority  of  this  case,  inclined  to  think  a  will  well  attested, 
where  the  testatrix  could  see  the  witnesses  through  the  windows  of  her  carriage,  and 
of  the  attorney's  office.] 

But  where  one  devised  lands  to  J  S  and  his  heirs,  and  duly  subscribed 
his  will  in  the  presence  of  three  witnesses  ;  who,  for  the  ease  of  the  testa- 
tor, went  down  stairs  into  another  room,  and  attested  the  wTill  there,  which 
was  out  of  the  presence  of  the  testator :  and  the  heir  at  law  was  prevailed 
on  to  join  in  a  lease  and  release  of  the  devised  premises,  in  trust  for  the 
devisee  ;  the  will  and  the  release  were  both  set  aside  ;  for  the  release  recit- 
ing that  the  will  was  duly  executed,  was  suggestio  falsi,  and  the  conceal- 
ing from  the  heir,  that  it  was  not  duly  executed,  was  suppressio  veri  ;  either 
of  which  circumstances  are  good  reasons  for  setting  aside  a  release  or  con- 
veyance. 

I  P.  Wms.  239,  Broderick  v.  Broderick. 

||And  if  the  testator  is  in  such  a  position  that  he  cannot  in  any  manner 

2T 


494       OF  WILLS  AND  TESTAMENTS. 

(D)  Of  Wills  in  Writing.     (Signing,  attestation,  tyc.) 

see  the  witnesses,  the  will  is  not  duly  attested.     But  if  it  is  attested  in 

such  a  place  that  the  testator  may  see  it  done,  this  is  sufficient. 

Doe  d.  Wright  v.  Manifold,  1  Maule&  S.  294  ;  Todd  v.  Earl  of  Winchilsea,  Moo. 
&  Malk.  Cas.  12;  Morrison  v.  Arnold,  19  Ves.  671. || 

If  the  testator  writes  the  will  with  his  own  hand,  though  he  does  not 
subscribe  his  name,  but  seals  and  publishes  it,  and  three  witnesses  sub- 
scribe their  names  in  his  presence,  it  is  a  good  will  :(a)  for  his  name  being 
written  in  the  will  it  is  a  sufficient  signing :  and  the  statute  does  not  direct, 
whether  it  shall  be  at  the  top,  bottom,  &c.  ;  and,  by  three  judges  against 
one,  sealing  is  a  signing  within  the  act.  And  note  ;  it  is  not  said  in  the 
act,  that  the  signing  shall  be  in  the  presence  of  the  three  witnesses  at  the 
same  time. 

3  Lev.  1,  Lemayne  v.  Stanley.  ||(a)  According  to  the  report  of  this  case  in  Freeman, 
the  court  was  of  opinion,  that  if  the  testator  had  his  name  on  a  stamp,  it  would  be 
enough  if  he  impressed  his  name  instead  of  signing  it.  And  in  Strange  v.  Barnard, 
2  Bro.  C.  C  585,  it  was  held  that  stamping  was  equivalent  to  sealing.  By  the  civil 
law,  if  a  testator  could  not  write,  he  was  admitted  to  make  his  mark,  but  an  eighth 
subscribing  witness  (seven  being  the  ordinary  legal  number,)  was  called  in  to  subscribe 
in  place  of  the  testator.     Cod.  6,  23,  l.|| 

/3In  New  York,  a  testamentary  paper  found  in  an  iron  chest,  among  the 
valuable  papers  of  a  deceased  person,  without  signature,  having  an  attes- 
tation clause,  without  witnesses,  written  by  the  deceased,  with  his  name  in 
the  beginning,  evincing  much  foresight  and  deliberation  in  its  provisions, 
and  disposing  of  both  real  and  personal  estate  to  a  large  amount,  according 
to  the  common  law,  as  generally  understood  and  received  in  England  and 
in  that  State,  on  the  19th  of  April,  1775,  when  the  common  law  was 
adopted  as  a  part  of  the  law  of  New  York,  is  a  good  will  of  the  personal 
estate  bequeathed  by  such  will. 

Watts  v.  The  Public  Administrator,  4  Wend.  I68.5/ 

J  S,  before  the  statute  of  29  Car.  2,  viz.  in  1668-9,  wrote  his  will  with 
his  own  hand  on  a  sheet  of  paper,  and  the  writing  went  to  the  bottom  on 
one  side,  and  half-way  on  the  backside,  which  will,  at  the  end  of  it,  had 
the  name  and  seal  of  J  S,  and  notice  was  taken  in  his  own  hand  of  some 
interlineations.  At  a  very  little  distance  on  the  backside  of  the  same  pa- 
per, a  codicil  was  written,  which  extended  almost  to  the  bottom  of  the 
same  backside  of  the  paper,  and  was  dated  1679,  which  was  after  the  sta- 
tute of  frauds,  and  had  the  name  of  the  devisor  subscribed,  and  his  seal 
affixed  ;  in  which  codicil  a  legacy  as  to  a  house  was  revoked,  and  the 
same  was  thereby  devised  to  A  for  life,  and  after  to  his  brothers  succes- 
sively, but  notice  was  not  taken  of  the  names  of  his  brothers  in  the  codi- 
cil, but  they  were  named  in  the  will.  At  the  top  of  the  will  was  written, 
"Signed,  sealed,  and  published,  as  my  last  will  and  testament,  in  the  pre- 
sence of  the  same,  being  written  here  for  want  of  room  below."  This 
was  likewise  written  in  the  testator's  own  hand,  and  then  the  names  of  the 
three  witnesses  were  subscribed  ;  two  of  those  witnesses  were  dead,  and 
the  third  was  produced  at  the  trial,  who  testified  that  he  was  servant  to  the 
testator  for  four  years,  and  about  twenty-seven  or  twenty-eight  years  ago, 
he  and  the  other  two  witnesses  were  called  up  in  the  night,  and  sent  for 
into  the  testator's  chamber,  who  produced  a  paper  folded  up,  and  desired 
him  and  the  others  to  set  their  hands  as  witnesses  to  it,  which  they  all 
three  did  in  his  presence  ;  but  they  did  not  see  any  writing,  nor  did  the 
testator   tell  them  it  was  his  will,  or  say  what  it  was ;  but  he  believes 


OF  WILLS  AND  TESTAMENTS.      495 

(D)  Of  Wills  in  Writing.     (Signing,  Attestation,  &c.) 

this  to  be  the  paper,  because  his  name  is  there,  and  the  names  of  the  other 
witnesses,  and  he  never  witnessed  any  other  deed  or  paper  for  the  testa- 
tor ;  and  though  the  testator  did  not  set  his  name  or  seal  to  the  will  in 
their  presence,  yet  he  had  often  seen  him  write,  and  believes  the  whole 
will  and  codicil  to  be  of  his  handwriting.  And  Lord  Chief  Justice  Tre- 
vor inclined  that  here  was  sufficient  evidence  to  find  the  codicil  well  ex- 
ecuted, and  the  jury  found  it  accordingly. 

Comyns's  Rep.  197,  Peate  v.  Ougley;  ||Vin.  Abr.  tit.  Devise,  (N),  7,  pi.  12.|]  It 
was  insisted,  that  upon  this  evidence  it  is  apparent  that  the  codicil  was  written  before 
the  execution  of  the  will ;  for  otherwise  there  was  no  reason  that  the  witnesses  should 
write  their  names  at  the  top  of  the  first  side  of  the  will,  and  the  words  written  by  the 
testator's  own  hand  as  the  reason  of  it,  had  been  false,  if  the  codicil  had  not  then  been 
upon  that  paper:  for  there  would  have  been  sufficient  room  below  the  will  for  the  wit- 
nesses to  attest  it.  The  witness  also  says,  that  the  execution  was  about  twenty-seven 
or  twenty-eight  years  ago ;  which  time  is  subsequent  to  the  codicil.  But  it  was  said, 
the  execution  is  sufficient  within  the  statute ;  for  there  is  no  necessity  that  the  wit- 
nesses see  the  testator  write  his  name ;  and  if  he  writes  these  words,  "  Signed,  sealed, 
and  published  as  his  will,"  and  prays  the  witnesses  to  subscribe  their  names  to  that, 
it  will  be  a  sufficient  publication  of  his  will,  though  the  witnesses  do  not  hear  him  de- 
clare it  to  be  his  will;  and  a  case  was  mentioned,  determined  by  Lord  Chancellor 
Shaftesbury,  before  29  Car.  2,  where  a  man  wrote  his  will  with  his  own  hand,  and  also 
these  words,  "  Signed  and  published  in  the  presence  of,"  and  no  witnesses  had  sub- 
scribed it;  this  was  held  to  be  a  sufficient  publication.     Ibid. 

A  B  made  a  will  or  testament  schedule,  all  of  his  own  handwriting,  as 
follows :  "  In  the  name  of  God,  Amen.  I,  A  B  do  make  this  my  last  will 
and  testament  for  fear  of  mortality  till  I  can  settle  it  more  at  large.  I  do 
give  and  bequeath  1000/.  unto  D  P  to  be  paid  by  my  executor  (or)  admi- 
nistrator :  and  for  sure  payment  thereof,  I  do  charge  all  the  real  and  per- 
sonal estate  which  I  have  in  the  world,  I  being  very  desirous  to  make  a 
provision  for  the  said  D  Pfor  several  good  reasons  inducing  me  thereunto. 
In  witness  whereof  I  have  hereunto  set  my  hand,  this  present  7th  day  of 
December,  1704.  Signed  A  B."  He  delivered  the  same  to  the  said  D  P, 
and  about  a  fortnight  before  his  death,  A  B  declared  he  had  left  with  D  P 
an  unquestionable  security  for  1000/.,  charged  upon  his  real  and  personal 
estate,  and  that  he  had  done  the  same  for  fear  of  mortality,  till  such  time 
as  he  could  make  a  full  and  complete  will ;  which  he  declared  he  would 
do  as  soon  as  his  wife  was  brought  to  bed,  but  that  he  waited  to  see  if  it 
were  male  or  female.  He  died  suddenly  6th  February,  1794,  leaving  his 
wife  then  lying  in  of  a  daughter.  The  Judge  of  the  Prerogative  Court 
gave  sentence  against  the  will,  and  pronounced  that  A  B  died  intestate. 
On  appeal  to  the  delegates  (among  whom  were  Holt,  C.  J.,  Price,  B.,  and 
Judge  Dormer)  the  sentence  was  reversed,  and  they  pronounced  for  the 
will. 

2  Ld.  Raym.  1282,  Powel  v.  Beresford. 

A,  by  will  in  writing,  attested  by  three  witnesses,  devised  a  copyhold 
estate  to  his  wife  ;  and  afterwards  the  testator,  on  the  day  of  his  death, 
directed  his  nephew  to  obliterate  some  devises,  but  said  nothing  as  to  the 
copyhold  devised  to  his  wife,  and  then  caused  a  memorandum  to  be  written, 
that  he  examined,  perused,  and  approved  of  the  will  as  so  obliterated  and 
altered  by  his  nephew  in  his  presence,  but  did  not  republish  it  in  the  pre- 
sence of  three  witnesses,  but  directed  his  nephew  to  have.it  written  out 
fair ;  but  before  it  was  brought  back  he  became  delirious ;  and  this  was 
held  a  good  will  as  to  the  copyhold. 

2  Vern.  498,  Burkitt  v.  Burkitt.     £  To  make  a  valid  will,  the  testator  must  have  in- 


496     OF  WILLS  AND  TESTAMENTS. 

(D)  Of  Wills  in  Writing.     {Signing,  Attestation,  ^"c.) 

tended  the  paper  to  operate  as  it  stood,  without  a  further  act  to  complete  it,  and  that 
must  appear  from  the  paper  itself.  Murry  v.  Murry,  6  Watts,  356.  See  Barnett's  ap- 
peal, 3  Rawle,  15.# 

Testator  gave  instructions  to  make  his  will  of  his  real  and  personal 
estate,  and  when  it  was  brought  to  him  he  made  several  alterations,  and 
then  wrote  the  whole  over  as  altered,  with  his  own  hand :  this  being  found 
in  his  study,  though  not  signed  or  sealed,  wTas  held  a  good  will.  Note; 
the  first  sentence  was,  that  he  died  intestate,  but  that  was  reversed  by  the 
delegates. 

Comyns's  Rep.  453,  Limbery  et  al.  and  Hide.  ||See  Sikes  v.  Snaith,  2  Phil.  351  ; 
Wood  v.  Wood,  1  Phil.  365. ||  fi  Memoranda  written  from  the  dictation  of  the  deceased, 
and  proved  by  two  witnesses  to  have  been  read  to,  and  approved  of,  by  him;  held,  in 
Pennsylvania,  to  constitute  a  sufficient  will.      Rohrer  v.  Stehman,  1  Watts,  442.g/ 

A  will  of  lands  made  before  the  statute  of  frauds,  had  but  two  witnesses, 
and  the  testator  died  after  the  statute,  without  altering  his  will,  and  his 
Honour  thought  it  a  good  will  to  pass  the  lands ;  but  the  other  side  insist- 
ing to  have  it  tried  at  law,  he  directed  it  accordingly. 

Prec.  in  Chan.  77,  Serjeant  v.  Puntis. 

A  witness  proving  a  will  of  lands,  swears  that  he  subscribed  the  will, 
as  a  witness  in  the  same  room  with,  and  at  the  request  of,  the  testatrix ; 
two  others  swore,  that  they  saw  the  will  executed  by  the  testatrix,  and 
that  they  subscribed  the  same  in  the  testatrix's  presence ;  a  fourth  witness 
was  gone  beyond  sea,  and  therefore  could  not  be  examined.  Cowper,  C, 
doubted  as  to  the  proof  of  the  execution  of  this  will,  but  would  declare  no 
opinion  on  the  point  until  farther  application,  saying,  that  the  heir  at  law, 
then  an  infant,  might  by  that  time  come  of  age.  Afterwards  Lord  Maccles- 
field held,  that  the  bare  subscribing  by  the  witnesses  in  the  same  room 
did  not  necessarily  imply  it  to  be  in  the  testator's  presence,  for  it  might  be 
in  a  corner  of  the  room  in  a  clandestine,  fraudulent  way  ;  and  then  it  would 
not  be  a  subscribing  by  the  witness  in  the  testator's  presence,  merely  be- 
cause in  the  same  room  ;  but  that  here  it  being  sworn  by  the  witness,  that 
he  subscribed  the  will  at  the  testatrix's  request,  and  in  the  same  room,  this 
could  not  be  fraudulent,  and  was  therefore  well  enough. 

1  P.  Wms.  740,  Longford  v.  Eyre.  The  proper  way  of  examining  a  witness  to 
prove  a  will  as  to  lands,  is  that  the  witness  should  not  only  prove  the  executing  of  the 
will  by  the  testator,  and  his  own  subscribing  it  in  the  presence  of  the  testator,  but  like- 
wise that  the  rest  of  the  witnesses  subscribed  their  names  in  the  testator's  presence; 
and  then  one  witness  proves  the  full  execution  of  the  will,  since  he  proves  that  the  tes- 
tator executed  it;  and  likewise  that  the  three  witnesses  subscribed  it  in  his  presence. 
Per  Lord  Chan.  Macclesfield,  Ibid.  741  ;  {1  Esp.  Rep.  391,  Doe  v.  Smith.}  ||As  to 
'-he  proof  of  wills,  see  post,  (D)  II1.|| 

||  Where  the  testator  was  blind,  it  was  held  not  necessary  to  read  over 
the  will  to  him  before  execution  in  the  presence  of  the  attesting  witness. 

Longchamp  v.  Fish,  2  New  R.  415. || 

[The  law,  as  stated  by  Lord  Macclesfield  in  the  last  case,  seems  con- 
formable to  the  decision  of  the  Court  of  King's  Bench  in  the  case  of  Right 
and  Price,  in  which  the  court  held,  that  corporal  presence  merely  was  not 
sufficient,  unless  there  was  likewise  mental  knowledge  of  the  fact.  In  this 
case,  on  the  last  day  on  which  the  testator  made  an  effort  to  sign  the  will, 
but  failed,  the  witnesses  being  present,  the  form  of  an  attestation  was 
written  on  the  second  sheet,  and  they  put  their  names  to  it  in  the  room 
where  the  testator  lay,  but  he  was  in  a  slate  of  insensibility.  And  the 
question  was,  Whether   this  will  was  duly  executed  for   passing  lands 


OF  WILLS   AND   TESTAMENTS.     497 

(D)  Of  Wills  in  Writing.     {Signing,  Attestation,  &c.) 

according  to  the  statute  of  frauds  ?     In  support  of  the  will  it  was  argued, 
tnat  insensibility  was  something  short  of  death,  and  if  the  testator  was  alive, 
it  could  not  be  said  that  the  will  was  not  attested  in  his  presence.     That 
the  question  was,  Whether  the  testator  having  done  all  that  was  necessary 
on  his  part,  and  the  attestation  having  been  made  according  to  the  words 
of  the  statute,  a  fair  transaction  should  be  set  aside  because  a  formality 
required,  according  to  an  implied  intention  of  the  legislature,  had  not  been 
complied  with  :  that  it  did  not  appear  but  that  the  testator  might,  by  pos- 
sibility, have  opened  his  eyes  while  the  witnesses  were  subscribing  their 
names ;  and  that,  according  to  the  law  as  laid  down  in  Shires  and  Glas- 
cock, would  have  been  sufficient.     Sed  per  curiam, — The  court  will  lean 
in  support  of  a  fair  will,  and  not  defeat  it  for  a  slip  in  form,  where  the 
meaning  of  the  statute  has  been  complied  with  :  this  was  the  principle  of 
Shires  and  Glascock's  case,  and  other  cases  of  that  sort.     But  the  case  then 
before  the  court  was  not  one  where  there  was  a  measuring  cast  and  room 
for  presumption.     All  the  witnesses  knew,  at  the  time  of  the  attestation, 
that  the  testator  was  insensible.     He  was  a  log,  and  totally  absent  to  all 
mental  qualities.     That  it  was  usual  in  precedents  of  wills  to  say,  that  the 
witnesses  subscribed  at  the  request  of  the  testator:  that  indeed  was  not  ex- 
pressly required  by  the  statute,  but  the  practice  showed  the  general  under- 
standing, and  the  nature  of  the  thing  implied  a  request.     The  attestation  in 
the  testator's  presence  was  as  essential  as  his  signature,  and  all  must  be 
done  while  he  was  in  a  capacity  to  dispose  of  his  property.     In  this  case 
the  testator  could  not  know  whether  the  will  that  he  had  begun  to  sign  was 
that  which  the  witnesses  attested  ;  he  was  dead  to  all  purposes  or  power 
of  conveving  his  property. 
Right  v.  Price,  Dougl.  241.] 

||  Whether  an  acknowledgment  of  the  witness  to  the  testator  of  his  hand- 
writing to  the  attestation  is  sufficient,  seems  not  to  have  been  expressly 
decided,  though  it  would  seem  clearly  not  according  to  the  words  of  the 
statute. 

See  Rob.  on  Wills,  124. || 

0  The  inhabitants  of  an  incorporated  town,  to  whom  property  is  devised 
for  the  support  of  a  school,  are  competent  witnesses  to  support  the  will. 

Cornwell  v.  Isham,  1  Day,  35. 

An  executor  who  has  acted  under  the  will  and  accepted  the  trust,  who 
derives  no  beneficiary  interest  under  it,  is  a  competent  witness  to  establish 
the  will. 

Comstock  v.  Hadelyme  Ecclesiastical  Society,  8  Conn.  254.^ 

It  has  been  determined,  that  a  trust  of  an  inheritance  must  be  devised  in 
the  same  manner  as  a  legal  estate.     Thus  where — 

J  S,  seised  of  lands  in  fee,  conveyed  them  by  lease  and  release  to  trus- 
tees, to  the  use  of  them  and  their  heirs,  in  trust,  that  (after  such  moneys 
raised  as  therein  mentioned)  the  trustees  should  convey  to  A*  his  heirs  and 
assigns,  or  to  such  person  or  persons  as  he  or  they  should  direct ;  the 
moneys  were  raised,  and  A  by  will  attested  only  by  two  witnesses  devised 
the  premises  to  B.  Lord  Chan.  Macclesfield  said,  there  could  be  no  ques- 
tion but  that  a  trust  of  an  inheritance  could  not  be  devised  otherwise  than 
by  a  will  attested  by  three  witnesses,  in  the  same  manner  as  a  legal  estate  ; 
for  if  the  law  were  otherwise,  it  would  introduce  the  same  inconveniences 

Vol.  X.— 63  2  t  2 


49S     OF  WILLS  AND  TESTAMENTS. 

(D)  Of  Wills  in  Writing.     (Signing,  Attestation,  $*c.) 

as  to  frauds  and  perjuries,  as  were  occasioned  before  the  statute,  by  a  de- 
vise of  the  legal  estate  in  fee-simple.  Decreed  the  will  void,  and  that  the 
trustees  should  comrey  the  premises  to  the  testator's  heir  at  law. 

2  P.  Wms.  258,  Wagstaff  v.  WagstafF.  And  liis  lordship  held,  that  as  the  will  did 
not  refer  to  the  deed  of  trust,  but  A  had  undertaken  to  devise  the  land  as  owner  thereof, 
without  any  relation  had  to  the  pretended  power ;  this  made  it  much  stronger  against  the 
will.  Ibid.  260. — It  was  said  arg.  that  this  will,  though  not  good  by  way  of  devise, 
should  be  so  by  way  of  appointment,  like  a  copyhold  surrendered  to  the  use  of  a  will, 
which  may  be  devised  by  a  will  attested  by  two  witnesses,  or  one  witness  only.  But 
his  lordship  said,  that  the  copyhold  passes  by  a  surrender,  and  not  by  the  will,  and  that 
if  this  matter  had  not  been  settled,  it  might  be  more  reasonable  to  say,  when  I  have 
surrendered  my  copyhold  to  the  use  of  the  will,  a  will  of  this  copyhold  shall  be  so  exe- 
cuted, and  in  such  manner,  as  by  the  act  of  .parliament  a  will  of  lands  ought  to  be  exe- 
cuted; but  this  case  having  been  ruled  otherwise,  he  said  he  would  not  shake  it.  Ibid. 
258.  InHil.  Vac.  1727,  his  honour  admitted  it  to  be  settled  that  where  a  copyhold  in  fee 
is  surrendered  to  the  use  of  a  will,  such  will,  though  executed  in  the  presence  of  one  or 
two  witnesses  only,  is  good,  because  it  passes  by  the  surrender,  and  not  by  the  will, 
which  is  only  a  declaration  of  the  use  of  a  surrender :  but  that  if  a  copyholder  be  seised 
only  of  the  trust  or  equity  of  redemption  of  the  copyhold,  and  devise  such  trust  or 
equity  of  redemption,  there  must  be  three  witnesses  to  the  will ;  for  here  can  be  no 
precedent  surrender  to  the  use  of  the  will  to  pass  this  trust;  and  the  trust  and  equity  of 
redemption  of  all  lands  of  inheritance  are  within  the  statute  of  frauds,  otherwise  great 
inconvenience  would  arise  therefrom ;  and  it  is  no  prejudice  to  the  lord  to  comprise  the 
trust  of  a  copyhold  within  that  statute,  because  the  person  who  has  the  legal  estate  of 
the  copyhold  is  tenant  to  the  lord,  and  liable  to  answer  all  the  services.  Ibid.  2G1. 
Anon. — But  in  the  case  of  Tuft'nel  and  Page,  East.  1740,  Lord  Hardwicke  was  of 
opinion,  that  the  trust  of  a  copyhold  would  pass  by  a  will  not  attested  according  to  the 
statute  of  frauds,  as  a  copyhold  surrendered  to  the  use  of  a  will  would  do;  for  that 
equity  ought  to  follow  the  law,  and  make  it  at  least  as  easy  to  convey  a  trust  as  a  legal 
interest:  and  decreed  accordingly.  Ibid,  at  the  bottom  of  the  p.  261.  {17  East,  299,  Doe  v. 
Danvers.}  ||See  post,  p.  500;  and  see  55  G.  3,  c.  192,  by  which  a  disposition  by  will 
of  copyholds  is  rendered  as  valid,  without  a  surrender  by  testator,  as  it  was  before 
with  one.(| 

Upon  an  issue  directed  out  of  Chancery,  wherein  the  question  was, 
Whether  a  man  was  compos  or  not  at  the  time  of  executing  the  will  ?  it  was 
held  by  the  Chief  Justice,  that  it  was  not  necessary  that  all  the  witnesses  to 
the  will  should  see  it  executed  ;  if  one  of  them  saw  it  executed,  and  the 
others  were  present,  he  said  it  would  be  sufficient. 

Barnard.  Rep.  in  B.  R.  367,  Durrant  v.  Durrant. 

J  S,  possessed  of  a  term  of  five  hundred  years  in  Blackacre,  afterwards 
purchases  the  fee-simple  in  B's  name,  and  devises  Blackacre  by  will,  all 
of  his  own  handwriting,  to  C  in  fee  ;  but  the  will  was  neither  dated,  sub- 
scribed, nor  attested.  Decreed  per  his  honour,  that  as  this  was  a  term 
which  would  have  attended  the  inheritance,  and  in  equity  have  gone  to 
the  heir,  and  not  to  the  executor,  in  which  respect  it  was  to  be  considered 
as  part  of  the  inheritance,  so  the  will  which  was  not  attested  by  three  Wit- 
nesses, as  the  law  required  it  to  be  when  land  was  to  pass,  should  not  carry 
this  term. 

2  P.  Wms.  236,  Whitchurch  v.  Whitchurch.  A  will  not  attested,  &c,  as  in  the 
presentcase,  will  be  sufficient  to  pass  a  term  in  gross;  but  not  a  trust  of  a  term  attend- 
ant on  an  inheritance,  nor  consequently  the  term  itself.  Per  his  honour,  Ibid.  23H. — 
A  will  not  attested  as  the  statute  of  frauds  requires,  shnll  not  pass  any  estate  of  yrbii  !i 
the  heir,  as  heir,  would  otherwise  have  had  the  benefit.  Per  his  honour.  Ibid. — Gilb. 
Rep.  in  Eq.  168,  S.  C. ;  2  Mod.  Cases  in  Lav.  and  Equity,  121,  S.C.  ||Rob.  on  Wills,  1, 
158,  162.  I| 

Upon  an  ejectment  by  the  heir  at  law,  the  question  for  the  opinion  of  the 

court  was,  Whether  it  should  be  left  to  a  jury  to  determine,  whether  the 

witnesses  to  a  will  ''being  all  dead)  set  their  names  in  the  presence  of  the 


OF  WILLS  AND  TESTAMENTS.      499 

(D)  Of  Wills  in  Writing.     (Signiyig,  Attestation,  $c.) 

testator,  and  this  merely  upon  circumstances  without  any  positive  proof? 
Per  cur., — This  is  a  matter  fit  to  be  left  to  a  jury,  which  is  all  that  is  re- 
ferred to  the  court.  The  witnesses,  by  the  statute  of  frauds,  ought  to  sot 
their  names  as  witnesses  in  the  presence  of  the  testator ;  but  it  is  not  re- 
quired by  the  statute  that  this  should  be  taken  notice  of  in  the  subscription 
to  the  will  ;  and  whether  inserted  or  not  it  must  be  proved  ;  if  inserted,  it 
does  not  conclude  but  it  may  be  proved  contra,  and  the  verdict  may  find 
contra  ;  then,  if  not  conclusive  when  inserted,  the  omission  does  not  con- 
clude it  was  not  so,  and  therefore  it  must  be  proved  by  the  best  proof  the 
nature  of  the  thing  will  admit.  In  case  the  witnesses  be  dead,  there  can- 
not probably  be  any  express  proof,  since  at  the  execution  of  wills  few  are 
present  but  the  devisor  and  witnesses  ;  then,  as  in  other  cases,  the  proof 
must  be  circumstantial,  and  here  are  circumstances.  First,  three  witnesses 
have  set  their  names,  and  it  must  be  intended  they  did  it  regularly.  Secondly, 
one  witness  was  an  attorney  of  good  character,  and  may  be  presumed  to 
understand  what  ought  to  be  done  rather  than  the  contrary.  And  there 
may  be  circumstances  to  induce  a  jury  to  believe,  that  the  witnesses  set 
their  hands  in  the  presence  of  the  testator,  rather  than  the  contrary  ;  and 
it  being  a  matter  of  fact,  it  was  proper  to  be  left  to  them  ;  as,  whether  the 
livery  was  given  on  a  feoffment,  when  no  livery  is  endorsed  ;  whether  a 
deed  was  executed  when  only  a  counterpart  was  produced,  &c.  And  the 
court  was  of  opinion,  that  the  plaintiff  ought  to  be  nonsuited. 

Comyns's  R.  531,  Hands  v.  James. 

A  will  shall  not  be  read  on  proof  of  a  witness's  hand,  unless  there  be 
positive  proof  that  he  is  dead. 

Comyns's  R.  614,  Bishop  v.  Burton.  {Proof  of  the  witness's  hand  is  sufficient  if  he 
is  not  in  the  kingdom  ;  5  Ves.  J.  404,  Lord  Carrington  v.  Payne;  or  if  proper  inquiry 
has  been  made  for  him,  and  nothing  can  be  heard  of  him  ;  9  Ves.  J.  5,  M'Kenire  v. 
Frazer:  or  if  he  has  become  insane.     9  Ves.  J.  381,  Bernett  v.  Taylor.} 

Upon  a  trial  at  bar  concerning  the  execution  of  a  will,  it  did  not  appear 

upon  the  face  of  it,  that  the  attestation  of  the  witnesses  was  made  in  the 

presence  of  the  testator,  which  being  objected  to,  a  case  Avas  cited,  where 

Lord  Chief  Justice  Eyre  held  it  a  matter  proper  to  be  left  to  a  jury,  whether 

they  believed  it  to  be  so  done  or  not :  and  Mr.  Justice  Chappel  cited  a 

case  to  the  same  purpose,  quod  curia  concessit,  and  held  it  not  necessary  it 

should  be  inserted  in  the  will,  that  the  attestation  was  in  the  presence  of 

the  testator,  though  by  the  statute  it  is  necessary  it  should  in  fact  be  so 

attested. 

Vin.  Abr.  tit.  Devise,  (N),  9,  pi.  4,  Croft  on  dem.  of  Dalby  v.  Pawlet;  ||2  Stra.  1109. 
S.  C. ;  and  see  Brice  v.  Smith,  Willes  R.  1,  Lord  RanclirTe,  v.  Parkins,  6  Dow.  202.|! 

If  a  copyholder,  after  admittance,  surrenders  the  lands  to  the  use  of  his 
last  will,  and  by  his  last  will  gives  them  to  A,  but  the  will  is  not  attested 
by  any  witnesses  ;  yet  A  is  well  entitled  to  the  lands.  Per  Lord  Chan- 
cellor. 

Barnard.  Rep.  in  Chan.  11,  12,  Tuffnel  v.  Page.  And  his  lordship  said,  that  the 
reason  is,  that  the  party  is  in  by  the  surrender,  and  not  by  the  will,  anil  therefore  it  ie 
good,  though  there  be  no  witnesses  at  all ;  but  that  it.  is  necessary  that  the  will  be  in 
writing,  and  if  it  be  so,  it  is  sufficient,  if  it  be  signed  by  the  party  ;  and  so  it  is  where 
a  person  is  entitled  to  the  trust  of  a  copyhold,  though  there  were  no  surrender  at  all  to 
the  use  of  the  will,  nor  the  will  attested*  by  any  witness,  yet  it  is  sufficient  to  give  the 
trust  of  a  copyhold  estate.  Per  his  lordship,  Id.  ibid.  ||See  Noel  v.  Hoy,  5  Madd. 
38. ||  [The  necessity  that  a  will  of  copyholds  should  be  in  writing,  is  questioned  by 
Mr.  Watkins  in  his  Treatise  on  Copyholds.] 

A  surrender  was  made  of  a  copyhold  estate  to  trustees,  to  the  use  of  the 


500     OF  WILLS  AND  TESTAMENTS. 

(D)  Of  Wills  in  Writing.     (Signing,  Attestation,  $-c.) 

will ;  which  was  made  with  only  two  witnesses  to  it.  It  was  admitted, 
that  a  will  of  a  copyhold  estate  does  not  require  three  witnesses ;  but  this 
is  a  devise  of  a  trust  relating  to  lands,  so  within  the  very  words  of  the 
statute  of  frauds :  the  heir  controverting  the  surrender  and  the  will,  this 
point  was  not  determined,  but  two  issues  ordered. 

Select  Cases  in  Chan.  42,  Appleyard  v.  Wood.  Lord  Chancellor  seemed  to  be  of 
opinion,  that  the  devise  of  a  trust  must  ensue  the  nature  of  the  estate,  and  not  make  it 
necessary  to  have  three  witnesses,  as  the  copyhold  might  be  devised  without  three 
witnesses;  but  this  may  be  a  question  to  be  determined  when  the  issues  are  tried. 
Ibid Vin.  Abr.  tit.  Devise  (N),  1  pi.  4,  S.  C,  states  it  thus:— A  seised  in  fee  of  copy- 
hold lands,  makes  a  surrender  to  the  use  of  B  and  C,  and  their  heirs,  to  the  use  of  his 
will,  and  devises  the  land  to  D.  Parker,  Chan.,  was  of  opinion,  that  the  circumstances 
Tequired  by  the  statute  29  Car.  2,  in  devises  of  lands,  ought  to  be  observed  in  this  case : 
for,  by  this  surrender  the  fee  of  the  copyhold  was  in  the  surrenderors,  and  only  a  trust 
devised  by  the  will,  which  cannot  pass  by  the  devise,  without  the  circumstances  re- 
quired by  the  statute  of  frauds,  in  relation  to  devises  of  lands,  be  duly  observed.  But 
the  counsel  insisting  that  a  devise  of  copyhold  is  not  within  the  statute,  Lord  Chan- 
cellor said,  that  if  the  surrender  had  been  only  to  the  use  of  the  will,  that  might  have 
been  a  question  in  this  case,  but  now  it  is  not ;  however,  he  inclined  to  think  it  neces- 
sary in  that  case,  but  would  not  determine  that  point,  that  not  being  the  case  before 
him. 

|1  A  devise  of  a  customary  freehold  requires  an  execution  and  attestation, 
according  to  the  statute  of  frauds,  since  it  is  distinguishable  from  a  copy- 
hold ;  but  it  has  been  held  otherwise  where  there  is  a  custom  in  the  manor 
to  surrender  such  customary  estate  to  the  use  of  a  will. 

Hussey  v.  Grills,  Ambl.  299 ;  Cook  v.  Danvers,  7  East,  299. 

By  the  custom  of  a  manor,  the  legal  interest  in  customary  lands  was  not 
devisable,  but  was  transferable  by  a  deed  of  bargain  and  sale,  having  the 
effect  of  a  surrender,  in  which  the  operating  words  were  "  bargain,  sell, 
and  surrender;"  on  presentment  of  which,  admittance  was  granted  to  the 
alienee  ;  but  an  equitable  interest  in  such  lands  might  pass  Joy  devise.  A 
tenant  of  the  manor  conveyed  his  customary  lands  by  bargain  and  sale  to  a 
trustee,  upon  trust  for  such  person  as  the  tenant,  by  any  deed  or  instrument 
in  writing,  or  by  his  last  will,  or  any  codicil  thereto,  or  any  instrument  in 
the  nature  of  a  last  will  or  codicil,  to  be  by  him  legally  executed,  should 
appoint  or  devise  the  same  ;  and  under  this  conveyance  the  trustee  was 
admitted  ;  it  was  held,  that  the  equitable  interest  in  the  lands  could  net 
pass  by  the  unattested  codicil  of  the  tenant. 

Willan  v.  Lancaster,  3  Russell,  108. |J 

A  will  made  beyond  sea,  of  lands  in  England,  must  be  attested  by  three 
witnesses. 

2  P.  Wins.  293.  {But  a  will  of  personal  property  must  be  executed  according  to  the 
law  of  the  testator's  domicil  at  the  time  of  his  death.  1  Binn.  336,  Desesbats  v.  Ber- 
quier.    See  Executors  and  Administrators,  (A,)  and  3  \  es.  J.  418. } 

||  Lands  in  the  East  Indies,  held  by  a  tenure  of  the  nature  of  fee-simple, 
do  not  pass  by  an  unattested  will,  but  descend  to  the  person  who  would  be 
heir  at  law  in  England. 

Gardiner  v.  Fell,  1  Jac.  &  W.  22.     See  Sheddon  v.  Goodrich,  8  Ves.  481.|j 

J  S  had  a  power  at  any  time  during  the  joint  lives  of  him  and  M 
his  wife,  by  his  last  will,  or  any  writing  purporting  to  be  his  last  will, 
under  his  hand  and  seal,  attested  by  three  or  more  credible  wit- 
nesses, (if  he  should  die  before  his  wife,  without  any  issue  between 
them  then  living,)  to  charge  lands  with  any  sum  or  sums  of  money  not 
exceeding  2000/.,  to  be  paid  to  such  persons  and  in  such  proportions 


OF  WILLS  AND  TESTAMENTS.      501 

(D)  Of  Wills  in  Writing.     (Publication,  &c.) 

as  he  should  appoint :  with  the  like  remainder  to  M  if  she  should  die  with- 
out issue  in  the  life  of  her  husband,  J  S.  There  was  no  issue  of  the  mar- 
riage ;  and  J  S,  by  his  last  will  in  writing  under  his  hand,  attested  by  three 
witnesses,  but  not  sealed,  reciting  his  power,  &c.,  disposed  of  2000Z.  to 
the  plaintiffs  (being  his  relations)  in  the  proportions  therein  mentioned. 
There  were  three  witnesses  to  the  will.  Two  of  the  witnesses  swore  that 
the  will  was  signed  by  the  testator,  in  the  presence  of  all  the  three  witnesses  ; 
but  the  third  swore,  that  the  testator,  having  written  and  signed  the  will 
before,  called  for  the  witnesses,  and  declared  that  writing  to  be  his  last 
will,  and  that  all  the  three  witnesses  were  then  present,  and  subscribed 
their  names  in  his  presence.  Lord  Chanceller  King  referred  it  to  the 
judges  of  B.  R.,  who  determined  (on  argument)  that  the  will  was  void  as  a 
charge  for  want  of  being  sealed. 

2  P.  Wms.  506,  Dormer,  &c.  v.  Thurland,&c.  Lord  Chas.  King  said,  that  though 
he  himself  inclined  to  think  the  will  of  the  lands  good,  if  the  testator  should  acknow- 
ledge the  name  to  be  his,  and  the  witnesses  should  subscribe  in  his  presence,  yet  that 
point  should  be  reserved  to  the  defendant;  and  said,  that  he  took  this  will  to  be  a  good 
one,  and,  being  so,  to  be  a  good  charge.  But  in  the  case  of  Stonehouse  and  Evelyn,  in 
proving  a  will  disposing  of  a  real  estate,  the  proof  was  full  that  the  three  subscribing 
witnesses  did  subscribe  their  names  in  the  presence  of  the  testatrix  ;  but  one  of  them 
said,  he  did  not  see  the  testatrix  sign,  but  that  she  owned,  at  the  same  time  the  wit- 
nesses subscribed,  that  the  name  signed  to  the  will  was  her  own  handwriting,  which 
Sir  Joseph  .Tekyll  held,  without  all  doubt,  to  be  sufficient.  3  P.  Wms.  254.  And 
ibid,  the  reporter  says,  that  on  his  mentioning  his  honour's  opinion  above  to  .Mr.  Jus- 
tice Fortescue  Aland,  he  said,  it  was  the  common  practice,  and  that  he  had  twice  or 
thrice  ruled  it  so  upon  evidence  on  the  circuit;  and  that  it  is  sufficient  if  one  of  the 
three  subscribing  witnesses  swears  the  testator  acknowledged  the  signing  to  be  his 
own  handwriting  ;  and  it  is  remarkable,  that  the  statute  of  frauds  does  not  say  that  the 
testator  shall  sign  his  will  in  the  presence  of  three  witnesses,  but  requires  these  three 
things :  first,  that  the  will  should  be  in  writing ;  secondly,  that  it  should  be  signed  by 
the  testator;  and,  thirdly,  that  it  should  be  subscribed  by  three  witnesses  in  the  pre- 
sence of  the  testator. 

A  will  of  land  wTas  duly  signed  by  testatrix  in  the  presence  of  A,  and 
also  published;  which  A  wrote  the  will,  but  is  now  dead:  his  hand  was 
proved.  After  this  the  testatrix  called  in  B  to  be  a  witness  to  the  will ; 
she  told  him  it  was  her  will,  and  published  it  as  such ;  after  this  she  called 
in  C  and  did  the  same.  The  question  was,  Whether  these  witnesses  at- 
testing this  will  at  several  times,  though  all  in  the  presence  of  the  testatrix, 
wrere  according  to  the  statute  of  frauds  and  perjuries  ?  Baron  Price  held  it 
ill,  (a)  at  Lent  assizes  at  Devon,  1717. 

Vin.  Abr.  tit.  Devise,  (N),  10,  Ca.  3,  p.  128.  (a)  For  the  intent  was,  that  all  the  wit- 
nesses should  be  together,  that  one  might  testify  for  the  other;  and  this  was  a  ready 
way  to  let  in  fraud  and  perjury,  for  after  the  first  witness  had  attested  it,  there  might 
be  a  rasure  or  interlineation.     Per  Baron  Price.     Ibid. 

Lord  Keeper  Wright  held  a  publication  of  a  will  before  three  witnesses, 

though  at  three  several  times,  good  within  the  statute,  and  thought  the 

writing  of  the  will  with  the  testator's  own  hand  a  sufficient  signing  within 

the  statute,  though  not  subscribed  or  sealed  by  him;  but  doubted  whether 

owning  the  subscription  to  be  his  was  sufficient:  but  the  validity  of  the 

will  is  a  question  at  law,  and  therefore  ordered  it  to  be  tried. 

Pr.  Ch.  185,  Cook  v.  Parsons;  || Jones  v.  Lake,  2  Atk.  176;  see  the  doctrine  of  the 
civil  law  as  to  the  witnesses  attesting  at  separate  times  stated.     1  Roberts,  121,  notd.\\ 

If  a  man  draws  up  his  own  will,  and  sends  it  to  counsel  to  be  advised  of 
the  legality  of  it,  this  is  no  will,  unless  it  has  a  publication  after  he  receives 
it  back  from  his  counsel.     If  after  his  will  comes  from  counsel,  with  alter- 


502     OF  WILLS  AND  TESTAMENTS. 

(D)  Of  Wills  in  Writing.     (Publication,  &c.) 

ations  made  by  counsel,  the  party  puts  his  seal  to  it,  or  subscribes  his  name, 
or  writes  upon  it,  "  this  is  my  will ;"  though  there  be  no  witnesses  to  it, 
yet  this  is  a  good  publication,  because  any  of  those  declare  his  intent,  that 
it  should  be  his  will :  and  though  it  have  no  formal  beginning,  but  begin, 
"also  I  give  and  bequeath;"  and  though  there  be  blanks  for  the  names  of 
such  persons  as  he  says  he  has  made  a  lease  or  feoffment  to,  to  perform  his 
will,  if  there  be  such  a  lease  or  feoffment,  this  is  a  good  will,  and  shall 
direct  those  persons,  to  whom  such  lease,  &c,  is  made,  to  perform  all 
things  according  to  the  directions  of  such  will. 

Vin.  Abr.  tit.  Devise,  (N),  2,  pi.  16.  |jThis  case  was  before  the  statute  of  frauds, 
29  Car.  2.|| 

0A  will  is  duly  published,  when  it  is  written  and  signed  by  the  testator 
with  his  own  hand  ;  or  when  he  has  signed  one  not  written  by  himself,  and 
it  is  attested  by  the  witnesses  as  the  statute  requires. 

Ray  v.  W'alton,  2  Marsh.  74. g/ 

If  a  testator  signs  his  will,  but  delivers  it  as  his  act  and  deed,  yet  this 
will  be  a  sufficient  publication. 

Vin.  Abr.  tit.  Devise,  (N),  7,  Ca.  13,  p.  125.  ||This  case  was  before  the  statute  of 
frauds,  29  Car.  2.|| 

[Where  the  witnesses  were  deceived  by  the  testator  at  the  time  of  the 
execution,  and  were  led  to  believe,  from  the  words  used  by  the  testator  at 
the  execution  of  the  instrument,  that  it  was  a  deed  and  not  a  will  (for  it 
was  delivered  as  his  act  and  deed,  and  the  words  "  sealed  and  delivered" 
were  put  above  the  place  where  the  witnesses  were  to  subscribe^  their 
names:)  it  was  adjudged  by  the  court,  as  it  is  said,  for  the  inconveniences 
that  might  arise  in  families  from  having  it  known  that  a  person  had  made 
his  will,  that  this  was  a  sufficient  execution. 

Trimmer  v.  Jackson,  4  Burn's  Eccl.  Law,  117.  ||See  per  Lord  Hardwicke  in  Ross 
v.  Ewer,  3  Atk.  161,  and  Rob.  on  Wills,  vol.  ii.  101. || 

So,  if  the  devisor  show  the  will  unto  the  witnesses,  saying,  "  This  is  my 
last  will  and  testament,"  or,  "  herein  is  contained  my  last  will,"  this  ;.s 
sufficient  without  making  the  witnesses  privy  to  the  contents  thereof,  pro- 
vided the  witnesses  be  able  to  prove  the  identity  of  the  writing;  that  is  to 
say,  that  the  writing  showed  is  the  very  same  writing,  which  the  testator 
in  his  lifetime  affirmed  before  them  to  be  his  will,  or  to  contain  his  last  will 
and  testament. 

Swinb.  52  ;  Godb.  O.  L.  66. 

And  a  publication  may  be  inferred  from  circumstances,  and  will  have  the 
same  force  to  render  the  instrument  valid,  as  if  expressed  by  parol  decla- 
ration. 

In  a  case  which  came  on  at  the  assizes  at  Lincoln  before  Mr.  Justice 
Dennison  and  a  special  jury,  the  facts  were  these  :  W  made  his  will  in  his 
own  handwriting,  thereby  devising  his  real  estate,  and  the  form  of  attes- 
tation was  in  these  words,  "  signed,  sealed,  published,  and  declared  for  the 
last  will  and  testament  of  the  said  W,in  the  presence  of  us,"  I  M,  J  W,  and 
\V  P.  The  heir  at  law  brought  an  ejectment ;  and,  to  prove  the  will,  the 
devisee  produced  W  P,  one  of  the  three  subscribing  witnesses,  who  de- 
posed, that  about  July,  1760,  J  W,  then  butler  to  W,  the  devisor,  came 
and  told  him  that  he  must  come  to  his  master ;  that,  upon  entering  the  room, 
he  found  his  master  sitting  with  a  table  before  him,  on  which  were  some 
papers  open  ;  and  that  his  master  called  him  and  the  said  J  W,  and  I  M, 


OF  WILLS  AND  TESTAMENTS.      503 

(D)  Of  Wills  in  Writing.     (Publication,  &c.) 

(then  his  housekeeper,)  up  to  the  table  to  him,  where  they  all  came  ;  then 
W  further  addressed  himself  to  them  all,  desired  them  to  take  notice,  and 
then  took  a  pen,  and,  in  all  their  presence,  signed  and  sealed  each  part  of 
his  will,  and  laid  both  the  said  parts  open  and  unfolded  before  them  to 
subscribe  their  names  as  witnesses  thereto,  which  they  all  did,  by  the  direc- 
tion of  the  said  W,  in  his  presence,  and  in  the  presence  of  each  other, 
he  showing  them  severally  where  to  write  their  names.     But  that  the  said 
W,  otherwise  than  as  above,  did  not  declare  or  publish  either  part  to  be  his 
will,  or  say  what  it  was.     The  counsel  for  the   plaintiff  contended,  that 
this  was  not  a  sufficient  proof,  by  one  witness,  of  a  complete  execution  of 
the  will :  and  they  produced,  on  the  other  hand,  the  other  two  subscribing 
witnesses,  who,  in  many  particulars,  did  not  give  a  clear  and  distinct  evi- 
dence ;  and  could  not  recollect  whether  they  had  signed  one  or  two  pa- 
pers ;  or  wThether  then,  or  at  any  time  before  the  said  W's  death,  they  un- 
derstood what  they  had  so  witnessed  to  be  W's  will,  though  J  W  seemed 
to  admit  he  conjectured  it  so  to  be.     But  both  J  W  and  I  M  swore  that 
they  did  not  see  the  said  W  either  sign  or  seal  any  part  of  his  will :  that 
P,  the  other  subscribing  witness,  was  not  at  that  time  in  the  room,  when 
(at  the  said  W's  desire)  they  wrote  their  names  to  the  two  papers  as  they 
then  appeared;  that  W  did  not  declare  or  publish  it  as  his  will,  nor  did 
they  know  it  to  be  a  will.     The  counsel  for  the  devisee  then  called  R  P, 
the  testator's  groom,  who  swore,  that  one  morning,  in  the  beginning  of 
July,  1760,  J  W  told  him,  that  his  master  had  much  wanted  him,  and  that, 
upon  his  the  said  R  P's  offering  to  go  to  his  master  to  receive  his  orders, 
J  W  told  R  P,  that  the  business  was  done,  and  that  J  P  had  supplied  his 
place,  and  that  he  the  said  W  P,  J  W,  and  I  M,  had  that  morning  been 
witnessing  their  master's  will.     And  S  being  called,  swore,  that  in  the  be- 
ginning of  July,  1760,  I   M  came  one  morning  after  breakfast  into  the 
kitchen,  and  told  her  that  she,  and  J  W,  and  W  P,  had  that  morning  wit- 
nessed their  master's  will,  though  he  had  not  told  them  it  was  so.     Upon 
the  state  of  the  evidence  on  both  sides,  it  was  insisted  for  the  plaintiff,  that 
as  the  law  stood  before  the  statute  of  frauds,  publication  of  a  will  was  an 
essential  part  thereof;  and,  if  so,  there  wTa^'  nothing  in  that  statute  to  take 
it  away :  and  it  was  further  insisted,  that,  by  the  said  statute,  one  requisite 
to  a  good  and  valid  devise  of  lands  was,  that  it  should  be  attested  and 
subscribed  in  the  presence  of  the  devisor  by  three  or  four  credible  wit- 
nesses, and  that  the  words  attested  and  subscribed  must  import,  that  it  should 
be  published  as  a  devise  or  will  by  the  testator,  in  the  presence  of  the  wit- 
nesses.    On  the  contrary,  for  the  defendant,  it  was  contended,  that  neither 
before  nor  since  the  statute,  publication  was  necessary,  and  further,  sup- 
posing any  such  publication  was  necessary,  that  the  testator  had  used  words 
and  done  acts  which  amounted  to  a  publication  within  the  meaning  of  the 
statute,  which  had  not  directed  or  prescribed  any  particular  form  or  man- 
ner in  which  such  publication  should  be  made  ;  that  the  testator's  using 
these  significant  words  to  all  the  witnesses  when  he  called  them  up  to  the 
will,  "  take  notice ,"  and  then  signing  both  parts  of  his  will,  and  then  de- 
livering both  the  parts  thereof  to  the  witnesses  to  attest,  directing  them 
where  to  sign  their  names,  and  to  witness  each  part  under  the  common  and 
usual  form  of  attestation,  which  the  witness  did,  was  a  sufficient  execution 
and  publication  of  his  will ;  the  words  "signed,  sealed,  published,  and  de- 
clared" being  all  written  in  the  testator's  own  handwriting,  and  the  wit- 
ness P,  swearing  that  both  parts  of  the  will  lay  open  to  the  inspection  of 


504     OF  WILLS  AND  TESTAMENTS. 

(D)  Of  Wills  in  Writing.     (Republication.) 

all  the  witnesses  when  they  subscribed  their  names,  and  it  appearing,  by 
the  evidence  of  P  and  D,  that  both  the  other  witnesses  had  declared  that 
they  had  been  attesting  W's  will.  And  they  said  that  this  was  a  much 
stronger  case  than  that  of  Peate  and  Ongly,  supra.  And  Mr.  Justice  Deni- 
son  was  of  opinion,  that,  if  the  witnesses  for  the  defendant  were  credited 
by  the  jury,  this  was  a  due  execution  within  the  statute,  and  a  sufficient 
publication ;  and  the  jury  found  accordingly  for  the  defendant.  But  the 
plaintiff's  counsel  insisted  that  the  point,  whether  a  good  publication  or 
not,  should  be  reserved  for  a  case  to  be  argued  above.  However,  the 
matter  was  compromised  on  the  defendant's  remitting  the  costs. 

Wallis  v.  Wallis,  4  Burn's  Eccl.  Law,  127. 

An  illiterate  man  drew  up  himself,  and  wrote  on  two  sides  of  a  sheet  of 
paper,  several  devises  and  bequests,  which  he  subscribed  ;  but  they  were 
neither  signed  nor  witnessed.  He  afterwards  added  a  memorandum,  (so 
called  by  the  testator  himself,)  beginning  at  the  end  of  the  second,  or  the 
beginning  of  the  third  side  of  the  same  sheet  of  paper,  by  which  he  dis- 
posed of  a  part  of  his  personal  estate,  but  said,  that  he  did  not  mean  thereby 
to  disannul  any  part  of  his  former  devise  or  dispositions.  This  memoran- 
dum was  subscribed  by  him  in  the  presence  of  three  witnesses,  and  he  de- 
clared it  to  be  his  last  will  in  their  presence,  and  he  delivered  it  to  them, 
and  desired  them  to  subscribe  and  attest  it,  which  they  did  in  his  presence, 
and  in  the  presence  of  one  another.  The  Court  of  King's  Bench  held  this 
to  be  a  sufficient  publication  of  the  original  will  to  pass  the  real  estate. 

Carleton  v.  Griffin,  1  Burr.  549.] 

An  uncle  having  devised  his  estate  from  his  nephew  and  heir  at  law,  a 
younger  brother  of  the  heir  at  law,  at  the  uncle's  funeral,  snatched  the  will 
out  of  the  hands  of  the  executor,  and  tore  it  in  many  small  pieces,  but  most 
of  them,  and  particularly  that  part  wherein  was  the  devise  of  the  land,  were 
picked  up  and  stitched  together  again:  and  on  a  bill  to  have  the  will  esta- 
blished, it  was  decreed,  that  the  devisee  should  (a)  hold  against  the  heir, 
and  he  to  convey  to  him,  although  there  was  no  direct  proof  made  that  the 
heir  directed  the  tearing  of  the  will. 

2  Vern.  441,  Haynes  v.  Haynes.  (a)  A  will,  though  gnawn  to  pieces  by  rats  in  the 
life  of  the  devisor,  if  by  joining  the  pieces  together  the  contents  can  be  known,  will  be 
good.  So,  if  a  will  continues  in  writing  at  the  death  of  the  devisor,  though  <jnawn, 
burnt,  or  lost  after,  it  shall  stand  good.  Allen,  2,  55.  {See  2  Binn.  406,  Havard  v.  Da- 
vis; 1  Bay.  464,  Legare  v.  Ashe.}  A  writing,  in  form  of  an  indenture,  and  sealed 
and  delivered,  if  proved  to  be  intended  a  will,  shall  be  good  as  such.  1  Ch.  Cas.  218. 
1  Mod.  117. 

3.  Of  the  Republication  of  a  Will — What  will  amount  to  a  Republication  ;  and  where 
a  Republication  will  make  a  Devise  good. 

If  a  man  devises  certain  lands,  and  after  aliens  them  to  a  stranger,  and 
repurchases,  and  after  shows  his  intent,  that  the  said  will  shall  be  his  will; 
this  is  a  new  publication,  and  the  lands  shall  pass  by  the  devise. 

1  Vern.  330,  Hall  v.  Dunch.  &A  will  may,  in  Pennsylvania,  be  republished  by  pa- 
rol. Jones  v.  Hartley,  2  Whart.  103.  See  Linginfelter  v.  Linginfelter,  Hardin,  119, 
Jackson  v.  Potter,  9  Johns.  312.^ 

&  Any  circumstance  whatever,  plainly  indicative  of  the  testator's  satisfaction 
with  a  paper  as  his  will,  at  a  particular  period,  may  be  taken  as  a  republi- 
cation from  that  time. 

Hatch  v.  Hatch,  2  Hayw.  32. 


OF   WILLS  AND  TESTAMENTS.      505 

(D)  Of  Wills  in  Writing.     (Republication.) 

So,  the  testator's  saying  his  will  was  in  a  box  in  his  study  amounted  to 
a  new  publication. 

2  Vern.  209,  Cotton  and  Cotton;  1  Freem.  264,  states  it  thus  : — A  devised  his  lands 
in  D,  and  all  his  other  lands  unto  his  wife,  and  after  purchased  other  lands,  and  then 
discoursing  with  B,  B  desired  him  to  let  him  have  those  new  purchased  lands  at  the 
rate  that  he  bought  them.  A  answered  no  ;  for  that  he  had  made  his  will,  and  settled 
his  estate,  and  intended  that  his  wife  should  have  his  whole  estate.  The  court  strongly 
inclined  that  this  was  a  new  publication,  and  applied  particularly  to  the  lands;  and 
that  it  was  no  matter  for  alleging,  quod  dixit  animo  testandi,  for  that  must  necessarily 

be  intended,  when  the  discourse  had  particular  reference  to  the  will. 2  Chan.  R. 

138,  140,  S.  C.  says,  a  trial  at  law  having  been  had  upon  this  point,  a  special  verdict 
was  found  by  C.  J.  North's  directions ;  and  on  a  solemn  argument,  all  the  judges  of  C. 
B.  held  it  a  republication  of  the  will,  and  that  the  lands  belonged  to  the  wife,  and  that 
the  Court  of  Chancery  affirmed  the  judges'  opinion. 

If  a  man  seised  of  lands,  devises  all  the  lands  to  J  S,  and  afterwards  put- 
chases  the  manor  of  D,  and  after  writes  in  his  will  that  J  D  shall  be  his 
executor  :  yet  this  is  not  any  new  publication,  to  make  the  lands  pass. 

1  Roll.  Abr.  618.  j2A  will  once  revoked  by  a  written  declaration,  cannot  be  set  up 
by  a  republication  by  parol.  Witter  v.  Mott,  2  Conn.  67  ;  see  2  Whart.  103  ;  Hardin, 
119.?/ 

But  if,  after  the  purchase  of  the  manor  of  D,  he  delivers  the  first  will  a? 
his  will,  and  says,  that  it  shall  be  his  will,  without  putting  any  words 
thereto  ;  yet  this  is  a  new  publication  to  make  the  lands  newly  purchased 
pass. 

1  Roll.  Abr.  618;  1  Salk.  237. 

So,  if  a  man  seised  of  lands  in  D  devises  to  another  by  his  will  in 
writing  all  his  lands  in  D,  and  after  purchases  other  lands  in  D,  and  after 
one  J  S  comes  to  him,  and  requests  him  to  give  him  the  buying  of  the  lands 
last  purchased  ;  and  he  answers  him,  that  he  will  not,  but  that  his  intent 
was,  that  those  lands  should  go  to  his  executors  (the  devisee  being  made 
executor  by  the  will)  as  his  other  lands  should :  and  after  the  devisor 
causes  a  codicil  to  be  writ,  in  which  there  is  a  devise  of  several  personal 
things,  as  corn  and  implements  of  household,  and  annexes  to  it  his  first 
will ;  and  after  dies  without  other  publication  ;  yet  this  shall  be  a  sufficient 
publication  to  make  the  lands  newly  purchased  to  pass  by  the  will,  for 
there  need  no  other  words  in  the  will  than  there  were  before ;  and  his 
intent  appears  that  it  should  be  his  will,  by  annexing  the  codicil. 

1  Roll.  Abr.  618. 

But  if  a  man  has  issue  of  two  daughters,  A  and  B,  and  he  devises  lands 
to  A  and  to  the  heirs  of  her  body,  and  for  want  of  issue  to  B,  and  A  dies 
in  the  lifetime  of  the  testator,  leaving  issue,  though  after  the  testator  annexes 
a  codicil  to  his  will,  and  thereby  disposes  of  some  part  of  his  personal 
estate  ;  yet  this  will  not  amount  to  a  republication  of  the  will,  nor  give 
any  title  to  the  issue  of  A,  though  the  testator  had  declared  in  his  will, 
that  B  had  married  against  his  consent,  and  that  what  he  had  given  her 
was  in  full  of  her  portion,  and  in  bar  of  any  further  part  of  his  real  estate. 

1  Abr  Eq.  Cas.  407;  2  Vern.  722,  Hutton  v.  Simpson.  [Ld.  Camden,  speaking 
of  this  case  in  the  Attorney-General  v.  Downing,  Ambl.  374,  says,  "In  Hutton  v. 
Simpson,  it  is  said  that  annexing  a  codicil  to  a  will,  if  it  relates  only  to  personal  estate, 
will  not  operate  as  a  republication ;  but  I  am  of  opinion,  that  either  the  report  is  mis- 
taken, or  that  it  is  not  law.  The  principal  question  was  not,  Whether  the  codicil  was 
a  republication  of  the  wilH  but,  Whether  the  sense  of  the  words,  heirs  of  the  body,  could 
be  altered  by  the  death  of  the  testator's  daughter  in  his  lifetime'?  and  the  testator  after- 
wards making  a  codicil,  held,  they  could  not;  as  in  Stead  v.  Berrier,  2  Jon.  135." 
His  lordship,  therefore,  was  of  opinion,  that  a  will  of  lands  w»nld  be  republished  by  a 

Vol.  X.— 64  2  U 


506     OF  WILLS   AND   TESTAMENTS. 

(D)  Of  Wills  in  Writing.     {Republication.) 

codicil  that  related  wholly  to  personalty,  provided  it  was  attested  by  three  witnesses, 
grounding  himself  upon  this,  as  Lord  Thurlow  observed,  that  where  the  testator  an- 
nexes a  codicil  to  his  will,  he  treats  them  as  one  instrument,  and  makes  them  so  from 
that  lime.  Lord  Thurlow  therefore  thought,  that  where  a  testator  speaks  of  a  codicil 
to  be  annexed  to  his  will,  he  speaks  again  of  his  will,  and  at  least,  in  cases  of  personal  es- 
tate, it  amounts  to  a  republication.  Coppin  v.  Fernyhough,  2  Bro.  Oh.  R.  296 ;]  {4  Bro. 
C.  0.  2,  Barnes  v.  Orowe;  7  Ves.  J.  98,  Pigot  v.  Waller,  ace,  which  see,  infra,  p. 
510,  511.} 

It  has  been  doubted,  if  one  devises  a  lease  to  his  daughter,  and  after- 
wards renews  the  lease,  and  afterwards  adds  his  codicil  to  his  will  without 
taking  any  notice  of  the  lease,  whether  the  renewal  of  the  lease  is  a 
revocation,  and  whether  the  adding  of  a  codicil  to  his  will  is  a  republica- 
tion. 

2  Vern.  209. 

It  has  been  said,  however,  that  if  a  codicil  be  executed  after  making  a 
will  and  purchasing  lands,  it  will  amount  to  a  republication,  and  pass  the 
lands  purchased  after  making  the  will,  and  that  it  was  so  determined  by 
all  the  judges  in  the  case  of  Acherley  and  Vernon  :  which  see,  infra.  Sed 
quare,  unless  it  appears  he  had  his  real  estate  under  consideration. 

xMSS.  R.  Gibson  v.  Rogers,  in  Cane.  Trin.  23  G.  2;  [Ambl.  93,  S.  C]  |]That  the 
case  of  Acherley  v.  Vernon  is  now  confirmed,  see  post,  p.  507,  and  3  Younge  &  J.  285  ; 
1  Meriv.  285.|| 

A  having  given  a  legacy  inter  alia  to  his  son  Joseph,  Joseph  died,  and 
he  afterwards  had  another  Joseph,  and  then  by  a  codicil  to  his  will,  con- 
firming his  will,  he  took  notice,  that  since  the  last,  it  had  pleased  God  to 
give  him  another  son,  and  gave  him  a  smaller  legacy.  Determined,  that 
this  was  a  republication  of  his  will,  and  amounted  to  a  substituting  of  the 
second  Joseph  in  the  place  of  the  first ;  and  gave  him  the  first  legacy  as 
well  as  the  second. 

MS.  Rep.  Perkins  and  Micclethwaite;  ||1  P.  Wms.  275,  S.  C.|| 

If  a  man  has  issue  three  sons,  A,  B,  and  C,  and  devises  lands  to  B  in 
tail,  remainder  to  C;  and  B  has  issue  two  sons,  and  dies;  and  after  the 
devisor  says,  "  My  will  is,  that  the  sons  of  B  shall  have  the  lands  devised 
to  their  father,  as  they  should  have  had  if  he  had  lived  and  had  died  after;" 
and  then  the  devisor  dies :  whether  this  should  amount  to  a  new  publica- 
tion, dubitatur ;  two  judges  against  two. 

Cro.  Eliz.  422,  Fuller  v.  Fuller.  ||The  better  opinion  seems  to  be  that  of  Gawdy 
and  Olinch,  that  it  was  not  a  new  publication. |j 

If  J  S  has  issue  two  sons,  William  and  Robert,  and  Robert  has  issue  a 
son  named  Robert,  and  J  S  devises  lands  to  his  son  Robert,  and  his  heirs ; 
and  by  the  same  will  gives  his  grandson  50/.,  and  Robert  his  son  dies; 
and  after  J  S  by  parol  republishing  his  will,  says,  "  Robert,  my  grandson, 
shall  take  by  my  will  as  Robert  my  son  should  have  done:"  yet  the  grand- 
son shall  not  have  the  lands,  for  lands  cannot  pass  but  by  will  in  writing ; 
and  his  son  Robert  cannot  import  his  grandson  Robert,  especially  when, 
by  the  same  will,  he  has  made  a  distinction  between  his  son  and  grandson. 
The  judgment  to  the  contrary,  given  by  three  judges  against  the  opinion 
of  Scroggs  in  the  Common  Pleas,  is  said  by  the  reporter  to  have  been  re- 
versed in  B.  R.  (as  he  heard,)  though  it  was  argued,  that  the  words  of  the 
will  were  proper  enough  to  pass  the  lands  to  the  grandson;  for  that  the 
addition  of  grand  only  imported  a  distinction  between  father  and  son  while 
living;  but  that  the  father  being  dead  at  the  time  of  the  republication,  the 
grandson  might  properly  be  described  by  the  name  of  son. 

1  Lev.  213,  Strode  v.  Berager;  1  Vent.  341 ;  2  Jones,  135;  Raym.  408. 


OF   WILLS  AND  TESTAMENTS.     507 

(D)  Of  Wills  in  Writing.     (Republication.) 

J  S,  by  a  will  dated  17th  Jan.  1711,  devised  to  M  his  wife  1000/.  per 
annum  for  her  life,  to  issue  out  of  his  real  estate,  his  capital  messuage  at 
H,  &c. ;  to  his  sister  E  200/.  per  annum  for  her  life  ;  and  1000/.  to  L  her 
daughter,  for  her  portion  ;  and  after  other  legacies,  he  devised  the  residue 
of  his  real  and  personal  estate  to  A,  B,  C,  D,  and  F,  and  their  heirs,  exe- 
cutors, and  administrators,  on  trust  to  vest  the  residue  of  his  personal  estate 
in  lands  of  inheritance  ;  and  that  his  trustees  should  stand  seised  and  pos- 
sessed of  his  real  and  personal  estate  to  the  uses  of  his  will,  during  his 
wife's  life ;  and  after  her  decease,  if  he  should  die  without  issue,  to  the 
intent  that  his  freehold  and  leasehold  estate,  and  the  lands  to  be  purchased, 
should  be  settled  to  the  use  of  the  defendant  G  for  ninety-nine  years :  then 
to  his  first  and  other  sons  in  tail-male,  &c.  J  S  purchased  several  fee-farm 
rents,  assart  rents,  and  other  lands  and  tenements ;  and  then  by  a  codicil, 
2d  Feb.  1720,  being  two  days  before  his  death,  he  recites  that  he  made  a 
will,  dated  1st  Jan.  1711,  and  then  says,  "  I  hereby  ratify  and  confirm  the 
said  will,  except  in  the  alterations  hereafter  mentioned.  The  portion  to 
my  niece  L  shall  be  made  up  6000/.,  and  what  I  have  given  to  my  sister 
and  niece  shall  be  accepted  by  them  in  satisfaction  of  all  they  may  claim 
out  of  my  real  and  personal  estate,  and  on  condition  they  release  all  right, 
&c,  to  my  executors  and  trustees  in  my  will  named  ;  and  thus  having  pro- 
vided for  my  sister  and  niece,  I  devise  all  the  lands  by  me  purchased  since 
my  will,  to  my  trustees  and  executors  in  my  will  named,  to  the  same  uses, 
and  subject  to  the  same  trusts  to  which  I  have  mentioned  to  devise  the 
manor  of  H  and  the  bulk  of  my  estate  ;  and  I  revoke  that  part  of  my  will, 
whereby  I  appoint  A,  B,  and  C,  three  of  my  trustees  in  my  will ;  and  I 
desire  K  and  N  to  be  two  of  my  trustees,  and  devise  my  said  real  estate  to 
them  accordingly."  Lord  Chancellor  Macclesfield,  20th  Nov.  1723,  de- 
creed, that  the  will  was  confirmed  by  the  codicil ;  that  J  S  signing  and 
publishing  his  codicil  in  the  presence  of  three  witnesses  was  a  republica- 
tion of  his  will,  and  both  together  made  but  one  will ;  and  by  the  said  will 
and  codicil,  his  fee-farm  rents,  assart  rents,  and  lands,  contracted  to  be 
purchased,  and  all  his  real  and  personal  estate,  (except  the  copyhold  pur- 
chased before  his  will,)  did  well  pass.  On  appeal  to  the  Lords,  the  de- 
cree was  affirmed. 

Comyns'sR.  381,Acherley  v.  Vernon;   [3  Bro.  P.  C.  107,S.C]     J  S,  by  will,  dated 
25th  March,  1700,  devised  all  his  lands  to  A  his  nephew  and  his  heirs,  and  directed  that 

he  should  take  the  surname  of  Lytton  ;  and  his  personal  estate  be  devised  to  Dame 

Russel,  his  sister,  and  the  said  A,  and  made  them  executors.  Afterwards  J  S  pur- 
chased the  equity  of  redemption  of  some  mortgages  in  fee,  which  were  mortgaged  to 
him  before  he  made  his  will,  and  13th  Jan.  1704,  by  a  codicil  attested  by  three  wit- 
nesses, he  says,  "I  make  this  codicil,  which  I  will  shall  be  added  to  and  be  part  of  my 
last  will,  which  I  have  formerly  made."  And  Lord  Ch.  Cowper,  assisted  hy  Sir  John 
Trevor,  Master  of  the  Rolls,  and  Lord  C.  J.  Trevor,  and  Tracey,  J.,  16th  June,  1708, 
decreed,  that  this  was  not  a  republication.  For  since  the  statute  29  Car.  2,  there  can 
be  no  devise  of  lands  by  an  implied  republication  ;  for  the  paper  in  which  a  devise  of 
lands  is  contained,  ought  to  be  re-executed  in  the  presence  of  three  witnesses.  Cited 
arg.  in  the  case  of  Acherley  v.  Vernon,  as  the  case  of  Lytton  v.  Viscountess  Falk- 
land ;  vide  Comyns's  R.  383. A,  by  will,  dated  11th  October,  1G81,  only  executed, 

took  notice  that  his  lands  were  settled  upon  his  son  B  and  C  in  tail-male,  and  then  de- 
vised in  these  words  : — "  In  case  my  sons  shall  have  no  issue  male,  then,  for  the  pre- 
servation of  my  name  and  family,  I  devise  my  said  lands  to  rny  brother  G  and  the 
heirs  male  of  his  body  issuing."  G  died  in  the  life  of  the  testator,  having  issue  a  son; 
then  Lord  Lansdown,  by  which  the  devise  to  G  in  tail-male  lapsed.  Aug.  15,  1701, 
the  testator  sent  for  seven  persons,  and  said,  "I  sent  for  you  to  be  witnesses  to  my 
will,  and  sometimes  to  be  witnesses  tp  the  reoublication  ol  my  will ;"  and  then  took  a 


508      OF  WILLS  AND  TESTAMENTS. 

(D)  Of  Wills  in  Writing.     (Republication.) 

codicil,  dated  same  day,  in  one  hand,  and  the  will  in  the  other,  and  said,  "This  is  my 
will  whereby  I  have  settled  my  estate,  and  I  publish  this  codicil  as  part  thereof;"  and 
then  signed  the  codicil  which  lay  on  the  table  with  the  will,  in  the  presence  of  the  wit- 
nesses, who  subscribed  it  in  his  presence.  By  this  codicil  he  devised  in  these  words: 
"Whereas  I  heretofore  made  my  will,  dated  11th  Oct.  1684,  which  I  do  not  intend 
wholly  to  revoke ;  but  in  regard  to  the  many  accidents  and  alterations  in  my  family 
and  estate,  I  by  this  codicil,  which  I  appoint  to  be  taken  as  part  of  my  will,  devise  as 
follows;"  and  then  devised  several  manors,  &c,  to  his  son  B  in  fee,  and  1000/.  per 
annum  to  his  nephew,  then  Lord  Lansdown,  for  life.  He  then  put  the  will  and  codi- 
cil together  in  a  sheet  of  paper,  and  sealed  them  up  in  the  presence  of  the  same  wit- 
nesses ;  but  the  will  was  not  unfolded  in  their  presence,  nor  did  any  of  them  write 
their  names  as  witnesses  on  or  under  the  will,  or  on  the  same  paper;  but  on  the  codi- 
cil only.  And  Parker,  C.  J.,  and  the  whole  court,  held  this  no  republication.  For 
since  the  stat.  29  Car.  2,  there  shall  be  no  republication  by  implication  ;  but  the  will 
must  be  re-executed,  otherwise  a  devise  of  lands  shall  not  be  good.  Comyns's  R.  384. 
Vide  10  Mod.  96. Since  the  29  Car.  2,  the  same  forms  are  necessary  to  the  repub- 
lishing of  a  will  as  to  the  first  making  of  it.  Resolved  per  Lord  Ch.  Cowper,  Trevor, 
C.  J.,  and  Tracey,  J.  Vide  10  Mod.  R.  98.  [In  the  principal  case,  however,  it  is 
clear  that  Lord  Macclesfield  did  not  adhere  to  the  rule  he  laid  down  in  Lord  Lans- 
down's  case,  because  the  will  was  there  (in  the  principal  case)  held  to  be  republished 
without  re-execution,  and  consequently  must  have  been  republished,  notwithstanding 
the  Statute  of  Frauds,  by  implication.  Per  Lord  Commissioner  Eyre,  4  Bro.  Ch. 
R.  9.]  {In  Pennsylvania,  a  will  may  be  republished  by  parol.  2  Binn.  406,  Havard 
v.  Davis.}     |jSee  Piggott  v.  Waller,  7  Ves.  98,  and  post,  510. ]| 

[So,  one  devised  his  manors  to  A,  B,  and  C,  and  all  his  messuages, 

lands,  tenements,  and  hereditaments  in  the  county  of ,  or  elsewhere 

in  any  part  of  England,  subject  to  an  annuity,  to  the  use  of  P  for  life,  re- 
mainder, &c,  and,  afterwards,  entered  into  an  agreement  for  the  purchase 
of  lands  ;  and  then  made  twTo  codicils,  the  latter  of  which  was  on  a  sepa- 
rate paper,  and  though  not  dated,  was  agreed  to  have  been  made  about 
four  or  five  days  before  his  death  ;  and  recited  therein  that,  having  in  his 
will  appointed  several  limitations  and  remainders  of  his  estate,  some  of 
which  were  not  agreeable  to  his  present  intent,  he  revoked  so  much  as 
should  be  found  inconsistent  with  that  codicil,  ratifying  and  confirming  the 
other  parts  which  should  not  interfere  therewith.  This  paper  was  attested  as 
"  signed,  sealed,  and  published,  and  declared  by  the  testator,  as  a  codicil 
to  his  last  will  and  testament."  It  being  contended,  that  the  first  codicil 
would  not  amount  to  a  republication  of  the  will  as  to  the  lands  newly  pur- 
chased, the  agreement  respecting  them  not  being  to  be  carried  into  execu- 
tion until  subsequent  to  the  date  thereof;  the  question  was,  Whether  the 
last  codicil,  which  was  subsequent  to  the  time  stipulated  for  carrying  the 
agreement  into  execution,  was  a  republication  of  the  will  as  to  these  lands? 
And  it  was  contended,  that  it  could  not  be  a  republication,  because  it  was 
not  by  way  of  endorsement,  or  annexed  to  the  will,  or  shown  that  the  will 
itself  was  at  that  time  before  the  testator.     But  Sir  John  Strange,  Master 

/»  r*  •  • 

of  the  Rolls,  was  of  opinion,  that  notwithstanding  these  objections,  the  lat- 
ter codicil  amounted  to  a  republication  ;  because  it  was  an  express  decla- 
ration, that  the  rest  of  his  intent,  not  inconsistent  therewith,  should  con- 
tinue and  be  confirmed  :  and  his  honour  said,  that  it  might  be  mischievous 
to  hold  that  no  republication  could  be  but  by  the  testator's  taking  the  will 
in  his  hands  and  republishing  it  by  an  endorsement  on  it,  or  annexing  the 
codicil  to  the  will  itself;  the  person  intending  to  republish  might  be  at  a 
distance  from  the  will  itself,  or  might  not  have  it  in  his  power,  by  its  being 
in  custody  of  another ;  and  the  testator  might  know  the  substance,  though 
he  could  not  repeat  the  particulars. 
Potter  and  Potter,  1  Ves.  437. 


OF  WILLS  AND  TESTAMENTS.      509 

(D)  Of  Wills  in  Writing.     {Republication.) 

And  it  was  admitted  by  the  counsel,  in  the  case  of  Gibson  and  Mont- 
fort,  that  if  there  was,  in  a  codicil,  a  general  clause  of  confirmation  of  a 
will ;  as,  if  the  testator  therein  say,  "I  confirm  my  will,"  this  would  make 
that  codicil  amount  to  a  republication  ;  because  it  would  be  the  same  as  if 
the  testator  had  republished  every  devise  in  the  will  over  again.  And  of 
that  opinion  was  Lord  Hardwicke. 

Gibson  v.  Montford,  1  Ves.  489,  493;  and  Potter  v.  Potter,  supra.  {So  if  the  codi- 
cil, after  reciting  the  will,  contains  this  expression,  "  which  I  fully  approve  of."  9  Ves. 
J.  374.} 

This  point  was  also  so  decided  in  the  case  of  Doe  on  the  demise  of  Pate 
against  Davy.     There  D  by  will,  in  1767,  after  giving  several  legacies, 
made  the  following  residuary  devise :  "And,  as  to  all  the  rest  and  residue  of 
my  estate,  of  what  nature,  kind,  and  quality  soever,  I  give,  devise  and  be- 
queath the  same  unto  VV  P,  &c,  according  to  the  nature  of  the  respective 
estates."     The  testator  then  purchased  some  customary  estates,  and  after- 
wards surrendered  them  to  such  uses,  intents,  and  purposes  as  he  should 
by  his  last  will  and  testament  in  writing  thereof  direct,  limit,  and  appoint. 
He  then  made  a  codicil,  by  which,  reciting  that  he  had,  by  his  will,  devised 
all  his  fee-farm  rents  in  manner  therein  mentioned,  he  devised  the  same  to 
C  D,  &c,  and  then  proceeded  as  follows  :  "  I  do  hereby  ratify  and  confirm 
all  and  every  the  gifts,  devises,  and  bequests,  contained  in  my  said  will, 
except  what  I  have  hereby  altered.     And  I  do  desire,  that  this  present 
writing  may  be  annexed  to,  accepted,  and  taken  as  a  codicil  to  my  will,  to 
all  intents  and  purposes."     And  the  question  was,  Whether  the  execution 
of  the  codicil,  subsequent  to  the  purchase  and  surrender  of  the  copyhold 
estates,  amounted  to  such  a  republication  of  the  will  as  to  pass  them  ?     In 
favour  of  the  heir  at  law,  an  attempt  was  made  to  distinguish  this  case 
from  that  of  a  devise  of  freehold,  upon  the  ground  that  at  the  date  of  the 
will  the  testator  had  no  copyhold  estate,  clearly  then  he  had  no  intention 
to  pass  any  estate  of  copyhold  to  the  devisee.     Then  he  afterwards  pur- 
chased the  lands  in  question,  and  surrendered  them  to  such  uses  as  he  should 
declare  by  his  last  will,  not  to  the  uses  declared  or  to  be  declared  by  his 
last  will.     He  then  made  a  codicil,  by  which  he  ratified  and  confirmed 
every  gift  in  his  will,  except  what  he  had  particularly  altered  by  it.     This, 
then,  it  was  said,  was  a  ratification  only  of  what  he  had  before  expressly 
given  by  his  will.     But  the  will  contained  no  gift  or  devise  of  any  copy- 
hold lands,  nor  did  the  codicil  refer  to  any  ;  on  the  contrary,  it  was  clear 
that  the  only  object  the  testator  had  in  adding  the  codicil  was,  to  make  the 
particular  alteration  there  mentioned  ;    consequently  the  copyhold  lands 
were  undisposed  of,  and  the  heir  at  law  was  entitled  to  them  by  descent. 
Sed  per  curiam, — The  case  of  Acherley  and  Vernon  is  in  point,  that  the 
codicil  reciting  that  the  testator  had  made  his  will,  and  ratifying  and  con- 
firming it,  in  the  alterations  aforementioned,  was  a  republication  of  the 
will,  and  both  together  made  but  one  will,  whereby  the  lands  purchased 
after  the  will  passed. 

Doe  on  dem.  Pate  v.  Davy,  Cowp.  158. 

And  Lord  Hardwicke,  in  the  above-mentioned  case  of  Gibson  and  Mont- 
fort,  thought  that  if  the  proposition  there  admitted  was  law,  then  any  other 
words  that  amounted  to  a  confirmation  of  a  will  would  do  as  wrell  as  words 
expressly  confirming  it.  And,  therefore,  that  the  codicil  in  the  principal 
case  reciting,  that  "whereas  the  testator  had,  by  his  last  will  of  such  a 
date,  given  and  devised  to  his  executors  a  sum  of  money  in  trust  for  A, 

2v2 


510     OF  WILLS  AND  TESTAMENTS. 

(D)  Of  Wills  in  Writing.     (Republication.) 

and  another  in  trust  for  B,  he  revoked  those  legacies,  and  desired  that 
writing  should  be  a  further  part  of  his  said  last  will  and  testament," 
amounted  to  a  republication  to  give  the  will  operation  upon  lands  svbse- 
quently purchased,  under  a  sweeping  clause,  "as  to  all  the  rest,  residue, 
and  remainder  of  the  testator's  real  and  personal  estate  of  what  nature  and 
kind  soever ;"  for,  his  lordship  said,  though  there  were  not  the  words,  I 
confirm  my  will,  yet  there  were  the  words  I  desire,  &c,  between  which  and 
an  actual  confirmation  there  seemed  very  little  distinction.  But  the  case 
going  off  upon  another  ground,  no  judgment  was  given  thereupon. 

Gibson  v.  Montfort,  1  Ves.  489,  493,  el  supra. 

A  B  by  will  devised  his  real  estates  to  certain  uses.  Afterwards,  by 
deed,  he  conveyed  them  to  the  same  uses,  until  he  married,  and  then  to 
new  uses.  After  the  execution  of  the  deed,  but  before  marriage,  the  tes- 
tator, by  a  codicil,  attested  by  three  witnesses,  and  entitled,  A  codicil  which 
I  direct  and  desire  to  be  annexed,  and  taken  and  considered  as  part  of  my  last 
will,  makes  a  farther  disposition  of  a  part  of  his  personalty,  and  imposes  a 
forfeiture  on  any  person  who  should  disturb  his  wife ;  after  the  codicil  he 
marries.  Lord  Northington  was  very  clearly  of  opinion,  that  the  codicil 
was  a  republication  of  the  will,  being  declared  to  be  part  of  it,  and  annexed 
to  it. 

Jackson  v.  Hurlock,  Ambl.  407.     (jSee  Meggison  v.  Moore,  2  Ves.  630.|| 

W  B,  being  seised  and  possessed  of  real  and  personal  estate,  made  his 
will  duly  attested  to  pass  real  estates,  and  thereby  gave  and  devised  all  his 
messuages,  &c,  and  all  other  his  real  estate  situate  at  F  or  elsewhere,  to 
the  plaintiffs  in  trust  to  sell,  and  dispose  of  the  money  arising  from  the  sale 
in  the  manner  thereby  directed :  after  making  the  will,  the  testator  made  a 
codicil  thereto,  bearing  date  the  5th  November,  1785,  not  duly  attested  to 
pass  real  estates,  by  which  he  made  some  provisions  in  consequence  of  the 
marriage  of  one  of  his  daughters.  After  the  making  and  publication  of  his 
will  and  such  first  codicil,  he  bought  the  equity  of  redemption  of  an  estate 
then  in  mortgage  for  a  term  of  500  years  ;  and  the  fee,  subject  to  the  term, 
was  afterwards  conveyed  to  him.  After  this  transaction,  he  made  another 
codicil  to  his  will,  dated  27th  October,  1788,  whereby  he  made  some  altera- 
tions in  the  state  of  his  affairs,  and  disposed  of  a  leasehold  estate  ;  but  the 
codicil  did  not  mention  the  lands  purchased  since  the  date  of  the  will,  and 
concluded  thus:  "  In  witness  whereof  I  the  said  testator  W  B  have  to  this 
my  writing  contained  in  this  and  part  of  the  preceding  sheet  of  paper,  which 
I  declare  to  be  a  codicil  to  my  said  last  will  and  testament,  and  which  is 
to  be  accepted  and  taken  as  part  thereof,  set  my  hand,"  &c.  The  execu- 
tion of  this  last  codicil  was  attested  by  three  witnesses.  The  first  was  be- 
gun, and  partly  written  on  the  last  sheet  of  the  testator's  will,  and  was  a 
continuation  from  the  foot  of  the  said  will,  and  the  second  codicil  was  be- 
gun, and  partly  written  on  the  last  sheet  of  the  first  codicil,  and  was  a  con- 
tinuation from  the  foot  of  the  said  first  codicil,  and  the  will  and  codicils 
were  annexed  to  each  other  by  or  at  the  request  of  the  testator.  It  was 
determined  that  the  last  codicil  in  this  case  amounted  to  a  republication  of 
the  will,  and  acted  upon  the  after-purchased  estate.  Lord  Commissioner 
Wilson  observed,  that  the  testator  saying,  "  I  desire  the  codicil  shall  be 
part  of  my  will,"  was  equivalent  to  saying,  "  they  shall  be  one  instrument." 

Barnes  v.  Crow,  4  Bro.  Ch.  R.  2 ;  ||7  Ves.  486,  S.  C.|| 

||  Robert  Piggott,  by  his  will  of  4th  December,  1824,  devised  all  his  real 


OF  WILLb  AND    TESTAMENTS.      511 

(D)  Of  Wills  in  Writing.     (Republication.) 

estates  in  Salop  not  settled  on  his  eldest  son,  and  all  his  manors  and  real 
estate  in  the  counties  of  Warwick,  Northampton,  Huntingdon,  and  Cam- 
bridge, to  trustees  and  their  heirs,  upon  trust,  in  case  his  personal  estate 
should  be  deficient  to  raise  a  sum  adequate  to  pay  his  debts,  and  the  ce- 
mainder  to  be  for  his  eldest  son  Robert  Piggott  for  life,  and  after  his 
decease  in  trust  for  the  first  and  every  other  son  of  Robert  Piggott  succes- 
sively in  tail-male,  remainder  to  testator's  right  heirs  for  ever ;  and  he  gave 
to  his  two  daughters  5000/.  apiece,  and  by  a  codicil  duly  executed  to  pass 
real  estate,  he  recited  the  will  and  made  alterations  in  the  legacies  given 
by  it.  On  the  22d  February,  1736,  the  testator  purchased  and  had  con- 
veyed to  him  the  remaining  third  of  the  manor  of  Chesterton  in  Hunting- 
donshire (he  having  before  only  two-thirds  of  it ;)  and  by  a  codicil  of  2Gth 
June,  1742,  "  Made  and  published  by  me  Robert  Piggott,  &c,  and  to  be 
annexed  to  my  will  and  made  part  thereof  to  all  intents  and  purposes," 
the  testator  revoked  the  legacies  given  by  his  will  and  former  codicil  to  his 
daughter  Frances,  and  directed  only  100/.  to  be  paid  to  her  in  lieu  thereof. 
The  question  arising,  whether  the  second  codicil  had  the  effect  of  republish- 
ing the  will  so  as  to  pass  the  estate  purchased  in  1736,  Sir  William  Grant, 
M.  R.,  after  a  review  of  the  cases,  determined,  on  the  authority  of  Barnes 
v.  Crow,  that  the  will  was  republished  by  the  codicil. 

Piggott  v.  Waller,  7  Ves.  93. 

So  also,  where  a  testator  made  three  codicils  of  different  dates,  endorsed 
on  the  back  of  his  will,  and  the  two  first  referred  to  lands  purchased  since 
the  will,  and  disposed  of  them  according  to  the  directions  of  the  will  re- 
specting the  testator's  general  estate,  but  they  were  attested  by  only  two 
witnesses,  and  the  third  codicil  simply  appointed  a  new  executor  in  room 
of  one  named  in  the  second  codicil,  and  was  attested  by  three  witnesses  : 
it  was  held,  that  the  third  codicil  was  a  republication  of  the  will  and  of  the 
second  codicil,  and  that  the  lands  acquired  subsequently  to  the  will  passed 
according  to  the  disposition  of  the  will  as  to  the  testator's  lands  in  general. 

Guest  v.  Willasey,  2  Bing.  429.  The  court  afterwards,  on  the  case  being  remitted 
to  them,  held,  that  the  third  codicil  was  a  republication  of  the  first.     3  Bing.  614. 

A  codicil,  therefore,  properly  executed,  makes  the  will  speak  (as  it  is 
expressed)  at  the  date  of  the  codicil,  unless  a  contrary  intention  appear. 

Goodtitle  v.  Meredith,  2  Maule  &  S.  5  ;  and  see  Duffieki  v.  Elwes,  3  Barn.  &  C. 
731 ;  Rowley  v.  Eyton,  2  Meriv.  128.     /6  Brownell  v.  D'  Wolf,  3  Mason,  486.g/ 

But  if  the  will  had  reference  to  a  power  existing  at  its  date,  but  extin- 
guished previous  to  the  codicil,  the  codicil  cannot  have  the  effect  of  re- 
publishing the  will,  although  another  power  is  substituted  for  that  which 
was  extinguished.  Thus,  where  a  man  by  his  marriage  settlement,  having 
a  power  to  charge  a  sum  of  2000/.  on  certain  premises,  made  his  will  ac- 
cordingly, disposing  of  this  sum,  and  afterwards,  by  a  subsequent  settle- 
ment, extinguished  his  former  power,  ami-created  to  himself  a  new  power 
of  charging  the  same  sum  on  other  property,  and  afterwards  made  a 
codicil  with  three  witnesses,  making  no  mention  of  the  power ;  Sir  W. 
Grant,  M.  R.,  held  clearly,  that  the  power  itself  being  gone  before  the 
death  of  the  testator,  the  will  had  nothing  to  operate  upon,  and  could  not 
be  applied  to  the  new  power.  It  is  true,  he  observed,  a  codicil  has  the 
effect  of  republishing  a  will,  and  makes  it  speak  at  the  time  of  the  repub- 
lication.    But  here  the  will  speaks  only  of  the  power  given  b\  the  mar- 


512    OF  WILLS  AND  TESTAMENTS. 

(D)  Of  Wills  in  Writing.     (Republication.) 

riage  settlement,  which  was  as  much  gone  as  if  it  had  never  existed.     It 
was  a  new  power  for  a  new  consideration,  affecting  different  estates. 
Holmes  v.  Coghill,  7  Ves.  499  ;  and  see  Lane  v.  Wilkins,  10  East,  242. 

The  effect  of  a  codicil  upon  a  will,  in  making  it  speak  as  to  all  property 
possessed  at  the  date  of  the  codicil,  may  be  restrained  by  the  manner  in 
which  the  codicil  is  expressed.  Thus,  where  the  codicil,  reciting  the  de- 
vise by  the  will,  revoked  the  same  as  to  two  of  the  trustees,  and  then  de- 
vised the  said  lands,  &c,  lands  purchased  between  the  will  and  codicil 
were  adjudged  not  to  pass. 

Bowes  v.  Bowes,  2  Bos.  &  Pul.  500 ;  Parker  v.  Biscoe,  8  Taunt.  699 ;  Smith 
v.  Dearmer,  3  Younge  &  J.  285. 

Where  a  will,  containing  a  general  devise  of  the  testator's  estate,  is  re- 
published, an  estate  contracted  for  after  such  devise  will,  in  equity,  pass 
in  virtue  of  such  republication. 

Broome  v.  Monck,  10  Ves.  G05  ;  Hulme  v.  Heygate,  1  Meriv.  285. || 

J  H  being  seised  in  fee  of  certain  freehold  lands  called  A,  part  thereof 
situate  in  the  county  of  E  and  other  part  thereof  in  the  county  of  C,  and 
being  likewise  seised  of  certain  other  lands  called  B,  partly  freehold  and 
partly  copyhold,  in  the  county  of  E,  duly  made  and  published  his  last  will, 
bearing  date  13th  of  March,  1732,  and  thereby  devised  all  his  messuages, 
lands,  tenements,  and  hereditaments,  as  well  freehold  as  copyhold,  situate, 
lying,  and  being  in  the  counties  of  S,  E,  and  C,  or  either  of  them,  to  his 
wife  for  life,  and  after  her  decease  to  various  uses :  and  devised  all  the  rest 
and  residue  of  his  real  and  personal  estate  to  his  wife,  her  heirs,  executors, 
and  administrators,  and  appointed  her  his  sole  executrix.  The  testator, 
at  the  time  of  making  his  will,  was  mortgagee  ont  of  possession  of  three 
fifth  parts  of  certain  copyhold  premises  holden  of  the  manor  of  D,  in  the 
county  of  E,  which  he  afterwards  purchased  and  was  admitted  to  on  20th 
October,  1735,  and  in  the  same  year  purchased  one  other  fifth  part  of  the 
same  premises,  all  of  which  he  surrendered  thus:  "To  the  uses,  intents, 
and  purposes,  declared  or  to  be  declared  in  and  by  his  last  will  and  testa- 
ment."— In  the  year  1736  he  directed  a  50/.  legacy  to  be  struck  out  of  his 
will,  and  subscribed  the  following  memorandum  in  the  presence  of  two 
witnesses:  "  September  31st,  1736.  The  50/.  legacy  to  the  poor  of  the 
parish  of  W,  scratched  out  as  above,  was  done  in  his  presence,  and  by  his 
immediate  order,  he  having  paid  it  himself."  The  testator  died  the  fol- 
lowing year,  without  revoking  or  altering  his  will,  or  making  any  codicil 
thereto,  except  the  codicil  or  testamentary  declaration  above  mentioned. 
On  a  question  sent  out  of  Chancery,  Whether  the  copyhold  lands  to  which 
the  testator  was  admitted  the  20th  October,  1735,  and  which  he  surren- 
dered to  the  use  of  his  will,  were  subject  to  any  of  the  uses  mentioned  in 
his  will  of  the  13th  March,  1732  ?  The  Court  of  King's  Bench  certi- 
fied, that  the  surrender  did,  by  express  reference  to  the  uses  declared  by 
the  will,  adopt  and  apply  the  words  of  the  will  to  these  copyhold  lands,  as 
if  the  testator  had  been  seised  thereof  at  the  time  of  making  his  will  ;  and 
therefore  they  were  subject  to  the  uses  to  which  all  the  testator's  copyhold 
lands  in  the  county  of  E  were  devised  by  his  will.  Lord  Mansfield's  words, 
in  delivering  the  opinion  of  the  court,  deserve  attention  :  "  The  stating 
the  nature  of  a  republication  will  go  a  great  way  in  the  construction  of  this 
surrender.  When  a  man  republishes  his  will,  the  effect  is,  that  the  terms  and 
words  of  the  will  should  be  construed  to  speak  with  regard  to  the  property 


OF  WILLS  AND  TESTAMENTS.       513 

(D)  Of  Wills  in  Writing.    (Republication.) 

he  is  seised  of  at  the  date  of  the  republication,  just  the  same  as  if  he  had 
had  such  additional  property  at  the  time  of  making  his  will.  Therefore  if 
one  devises  lands  by  the  name  of  B,  C,  and  D,  and  purchases  new  lands, 
and  republishes  his  will,  the  republication  does  not  concern  such  new  lands, 
because  the  will  speaks  only  of  the  particular  lands  B,  C,  and  D.  But  if 
the  testator  in  his  will  says,  I  give  all  my  real  estate,  a  republication  will 
affect  all  such  newly-purchased  lands,  because  it  is  then  the  same  as  if  the 
testator  had  made  a  new  will.  Apply  this  rule  to  the  case  of  a  surrender, 
and  I  am  of  opinion  that  the  surrenderor  may  express  himself  so  as  to 
make  it  relate  to  a  will  actually  made  ;  and  that  the  copyhold  lands  so  sur- 
rendered will  pass  by  it.  Suppose  a  testator,  seised  of  copyhold  lands, 
makes  his  will  without  a  surrender,  if  he  afterwards  surrender  them  to  the 
use  of  his  will,  such  surrender  will  clearly  make  his  will  good,  and  is  ef- 
fectual to  pass  them ;  because  it  only  obviates  the  mode  and  form  of  con- 
veyance. What  has  the  testator  done  here  ?  having  made  his  will  and 
declared  his  lands  to  uses,  he  surrenders  his  newly-purchased  copyhold 
lands  to  the  uses,  intents  and  purposes,  declared  or  to  be  declared  in  his 
will :  it  is  precisely  the  same  thing  as  if  he  had  said, — '  And  whereas 
I  have  made  a  will  so  and  so,  and  devised  all  my  estate  to  J  S  to  such 
and  such  uses,  I  mean  these  newly-purchased  lands  should  pass  to  the 
same  uses.'  I  cannot  possibly  make  a  doubt  as  to  the  construction: 
and  there  was  no  occasion  to  strike  out  the  legacy  of  50?.,  unless  he  in- 
tended that  particular  part  of  his  will  should  be  cancelled,  and  the  rest 
stand." 

Heylin  v.  Heylin,  Cowp.  130.]  ||See  1  Term  R.  455,  n.  (/) ;  8  Ves.  286;  11  East, 
246.|| 

It  was  determined  upon  the  opinion  of  all  the  judges,  that  if  a  will  be 
made,  and  afterwards  another  will  without  cancelling  the  former ;  and  then, 
by  an  act  subsequent  to  both,  the  first  will  be  confirmed,  the  limitations 
in  that  will  so  confirmed  will  take  place ;  and  also,  that  if  there  are  two 
inconsistent  wills  of  the  same  date,  neither  of  which  can  be  proved  to  be 
last  executed,  they  are  both  void  by  the  common  law  for  uncertainty,  and 
will  let  in  the  heir  at  law  ;  and  also,  that  although  the  wills  are  dated  the 
same  day,  the  limitations  may  take  place  if  they  are  consistent  in  both, 
to  the  disinherison  of  the  heir  at  law :  and  upon  this  opinion,  the  order 
appealed  from,  which  was  a  dismission  of  the  plaintiff's  bill  in  the  Court 
of  Exchequer  in  Ireland,  was  confirmed  in  favour  of  Lord  Anglesey,  by 
the  House  of  Lords.     See  the  printed  copy. 

MS.  Hep.  Phipps  v.  Anglesey,  in  Lorn.  Proc.  June,  1751 ;  [5  Bro.  P.  C.  45,  S.  CV] 

{A  testator  made  a  will  dated  25th  November,  1752,  and  on  the  31st 
March,  1756,  he  made  another  will  different  from  the  former.  By  a 
codicil  in  1776,  reciting  that  he  had  devised  his  real  estate  by  his  last 
will  dated  25th  November,  1752,  he  charged  his  real  estates  with  his 
debts  and  the  legacies  given  by  the  codicil,  and  appointed  executors. 
This  was  held  to  be  a  republication  of  the  will  of  1752,  and  a  revocation 
of  that  of  1756 ;  establishing  the  principle  that  a  codicil  referring  to  a 
former  will  as  the  last  will  cancels  intermediate  wills. 

3  Ves.  J.  402,  Lord  Walpole  v.  Lord  Orrery  ;  4  Ves.  J.  615,  616.— The  court  re- 
jected evidence  offered  to  prove  a  mistake  of  ,the  testator,  and  that  ho  did  not  mean 
to  refer  to  the  will  to  which  the  codicil  did  expressly  refer. 

But  if  a  will  be  made  on  27th  May,  1790,  to  which  five  codicils  are 
afterwards  added,  by  the  fourth  of  which  the  testator  revokes  the  bequest 
Vot..  X.— 05 


514      OF  WILLS  AND  TESTAMENTS. 

(D)  Of  Wills  in  Writing.     ( Goods  and  Chattels.) 

of  certain  annuities  in  the  will,  and  by  the  fifth,  after  reciting  that  he 
had  made  his  will,  dated  27th  May,  1790,  he  changes  his  executor,  and 
adds,  "and  I  do  hereby  confirm  my  said  will  in  all  other  respects,"  this 
does  not  set  up  the  bequests  in  the  will  which  were  revoked  by  the  fourth 
codicil.  There  is  a  great  distinction  between  wills  and  codicils  in  this 
respect.  If  a  man  ratifies  and  confirms  his  last  will,  he  ratifies  and  con- 
firms it  with  every  codicil  that  has  been  added  to  it.  All  the  codicils 
are  parts  of  the  will. 

4  Ves.  J.  610,  Crosbie  v.  Macdoual.} 

||  Where  a  testator  makes  two  wills,  the  latter  of  which  is  inconsistent 
with  the  former,  if  he  afterwards  destroy  the  second  will,  leaving  the 
first  in  a  perfect  state,  the  original  will  has  been  held  to  be  set  up  again  ; 
which  doctrine  seems  to  stand  upon  this  principle, — that  the  first  will, 
being  ambulatory  during  the  testator's  life,  is  in  existence  without  any 
alteration  at  the  time  when  its  operation  is  to  begin  ;  and  that  which 
was  to  be  destructive  of  its  operation  is  out  of  the  way  at  the  moment 
when  it  was  to  have  its  destructive  effect. 

Glazier  v.  Glazier,  4  Burr.  2512. 

But  if  a  legacy  given  by  will  be  adeemed,  a  codicil,  ratifying  and  con- 
firming the  will,  has  not  the  effect  of  setting  up  the  adeemed  legacy. 
Monck  v.  Monck,  1  Ball  &  B.  298 ;  and  see  Rob.  on  Wills,  2,  168.|| 

j3  A  testator  sitting  in  his  bed  and  holding  a  paper  in  his  hand,  in  the 
presence  of  the  witnesses,  said  :  "  This  is  my  will ;  it  was  signed  and  wit- 
nessed in  1824,  and  I  have  called  you  to  witness  it  is  my  last  will  and 
testament;"  and  then  requested  that  a  certificate  of  this  republication 
and  acknowledgment  should  be  written  on  the  will,  which  was  done 
accordingly,  and  it  was  signed  by  the  attesting  witnesses,  though  not  by 
the  testator  himself.     Held,  that  this  was  a  good  republication. 

Reynold's  Lessee  v.  Shirly,  7  Ohio,  39. £j 

II.   What  shall  be  deemed  a  good  Will  in  Writing  of  Goods  and  Chattels, 

If  it  be  a  will  of  goods  and  chattels,  and  be  complete,  there  must  be 
an  executor  named  in  it,  and  that  executor  that  is  named  must  be  capable 
of  the  executorship  ;  for  this  is  the  principal  thing  in  it.  And  be  there 
never  so  many  legacies  given,  and  no  executor  made,  this  will  is  but  a 
codicil,  and  cannot  be  properly  called  a  testament ;  for  here  the  party 
dies  intestate,  and  an  administration  of  the  goods  must  be  granted ;  but 
where  there  is  an  executor,  although  there  be  no  legacy  given,  yet  it  is 
properly  said  to  be  a  testament. 

Shop.  Abr.  14,  voc.  Testament. 

\  A  testator  executed  his  will  in  due  form  of  law.  One  of  the  legatees 
ha  ving  afterwards  died  in  the  lifetime  of  the  testator,  he  gave  verbal  instruc- 
tions for  a  new  will,  which  were  committed  to  writing  by  his  friend,  in 
Miller  to  take  the  advice  of  counsel  as  to  the  legality  of  the  limitations 
therein  contained.  The  testator  afterwards  drew  up  a  memorandum  (nearly 
agreeing  with  those  instructions)  all  written  with  his  own  hand,  but  in 
which  his  name  no  where  appeared,  and  gave  it  to  the  same  friend,  together 
with  the  original  will,  for  the  purpose  of  drawing  a  new  will  from  the  two. 
The  draft  of  a  new  will  was  accordingly  prepared,  comprising  the  subject 
matter  of  the  original  will  and  the  memorandum,  and  being  presented  to 


OF  WILLS    AND   TESTAMENTS.     515 

(D)  Of  Wills  in  Writing.     {Goods  and  Chattels.) 

the  testator,  was  approved  by  him ;  but  the  signing  of  it  was  postponed, 
until  he  could  also  execute  a  release  of  a  mortgage  whicli  he  held  on  part 
of  the  estate  of  his  deceased  brother.  The  release  was  prepared,  and 
approved  by  the  testator,  but,  being  interlined,  was  returned  to  the  per- 
son who  wrote  it,  to  be  transcribed.  Before  a  fair  copy  was  made  and 
delivered  to  the  testator,  he  was  in  a  state  of  delirium,  and  so  continued 
till  lie  died,  without  having  executed  the  release  or  the  draft  of  the  new 
will.  That  draft  was  afterwards  lost,  but  was  proved  to  agree  in  sub- 
stance, if  not  in  words,  with  the  original  will  and  the  memorandum.  The 
original  will  was  established,  and  the  memorandum  was  also  established 
as  a  good  codicil  to  it  to  pass  personal  estate,  although  it  remained  in 
the  hands  of  the  writer  of  the  draft  from  the  time  when  it  was  first  de- 
livered to  him  until  after  the  death  of  the  testator. 
2MIen.  &  Mun.  467,  Cogbill  v.  Cogbill. 

C  L,  in  March,  1760,  wrote  a  letter  to  her  attorney  containing  instruc- 
tions for  drawing  her  will.  After  the  signature  were  these  words  :  "  This 
you  have  under  my  hand  if  any  thing  should  happen  before  the  writing 
is  drawn  up ;"  and  in  a  postscript  the  following  passage :  "  This  only  by 
way  of  memorandum  in  case  I  should  go  off  suddenly."  She  died  on  the 
2d  of  August  in  the  same  year.  The  prerogative  court  pronounced 
against  this  paper,  as  being  a  conditional  paper ;  the  operation  of  it  de- 
pending on  the  testatrix  dying  suddenly ;  whereas  she  had  time  to  make 
a  formal  will ;  and  parol  evidence  was  admitted.  But  the  delegates  re- 
versed the  sentence ;  and  pronounced  for  the  paper  as  the  last  will  and  testa- 
ment of  the  deceased ;  thinking  it  a  perfect  paper  and  an  absolute  disposition. 
4  Ves.  J.  200,  n.,  Habberfield  v.  Browning,  in  1773. 

W  M,  on  2d  October,  1785,  drew  up  in  his  own  handwriting  a  paper 
beginning:  "A  plan  of  a  will  proposed  to  be  drawn  as  the  last  testament 
of  W  M,"  and  endorsed:  "A  plan  designed  for  the  last  will  and  testa- 
ment of  W  M."  The  bequests  in  the  paper  were  in  terms  of  present  gift, 
and  it  was  dated  and  subscribed  by  him.  Below  the  signature,  and  of 
the  date  of  6th  October,  was  a  codicil,  likewise  signed  by  him  as  follows  : 
';I  must  not  forget  my  good  friends  M  and  C  H,  who  desire  will  accept 
five  guineas  each  for  a  ring."  In  December,  1789,  he  drew  up  another 
paper,  as  :  "A  plan  I  propose  to  draw  will  from,  abrogating  all  the  others 
I  have  already  drawn  out:"  this  contained  a  few  bequests  inconsistent 
with  the  former  paper,  but  broke  off  in  the  midst  of  a  sentence,  and  was 
left  unfinished.  The  former  paper  was  found  loose  in  a  desk  in  his  office, 
where  he  kept  only  his  official  papers,  and  not  any  important  private  pa- 
pers ;  and  the  latter  in  a  bureau  in  the  parlour  of  his  dwelling-house  in  a 
bundle  of  letters  and  papers.  Parol  evidence  I1}  was  also  given  of  fre- 
quent declarations  of  W  M,  showing  his  intention  that  the  former  paper 
\v.i.s  not,  and  should  not  bo  his  will.  The  judge  of  the  prerogative  court 
pronounced  against  the  validity  of  the  paper  of  December,  1789,  and  for 
the  validity  of  the  paper  of  2d  October,  1785,  and  of  the  codicil  dated  the 
6th  of  the  same  month ;  and  upon  an  appeal  to  the  delegates  from  that 
part  of  the  sentence  which  established  the  will  and  codicil  of  October,  the 
sentence  was  affirmed.  But  a  commission  of  review  was  granted,  and  the 
commissioners  of  review  reversed  the  two  former  sentences,  pronounced 
against  the  validity  of  the  pretended  will  and  codicil  of  October,  1785, 
and  declared  that  W  M  was  dead  intestate.     Lord  Loughborough,  in 


516     OF  WILLS  AND   TESTAMENTS. 

(D)  Of  Wills  in  Writing.     ( Goods  and  Chattels.) 

giving  his  reasons  for  recommending  the  granting  of  a  commission  of  a 

review,  considered  the  paper,  not  as  a  will,  but  only  a  project  of  a  will ; 

not  a  complete  definite  rule  and  law  for  settling  his  fortune. 

4  Ves.  J.  186,  Matthews  v.  Warner;  5  Ves.  J.  23,  S.  C;  2  Hen.  &  Mun.  515,  S. 
C.  cited.  J1}  It  was  admitted  only  dc  bene  esse,  subject  to  the  opinion  of  the  judges 
whether  the  paper  was  on  the  face  of  it  a  will  or  not ;  they  agreed  that  if  there  icas 
a  doubt  whether  a  will  or  not,  parol  evidence  should  be  admitted.     4  Ves.  J.  190,  208. 

A  will  disposing  both  of  real  and  personal  property  was  signed  and 
sealed  by  the  testator,  and  contained  a  clause  of  attestation,  which  was 
not  subscribed  by  any  witnesses.  The  paper  was  considered  imperfect  by 
Dr.  Calvert  on  account  of  the  clause  of  attestation  not  being  witnessed ; 
and  he  admitted  parol  evidence;  on  which  he  set  aside  the  paper.  But 
the  delegates  were  of  opinion,  that,  it  being  a  will  both  of  real  and  per- 
sonal property,  it  was,  reddendo  singula  singulis,  a  perfect  disposition 
of  personal  estate,  and  therefore  a  good  will :  and  they  rejected  parol 
evidence  against  it. 

4  Ves.  J.  200,  n.,  Cobbold  v.  Baas. 

If  a  man  leaves  twenty  several  papers  behind  him  executed  at  different 
times,  in  respect  to  personal  estate,  they  shall  all  be  taken  as  one  will, 
and  admitted  to  probate ;  and  the  court  will  endeavour  to  reconcile  them 
together  so  that  they  may  all  answer  as  near  as.  possible  the  intention  of 
the  testator. 

2  Atk.  87,  Stone  v.  Evans.  See  3  Ves.  J.  1G0,  Coxe  v.  Basset ;  5  Ves.  J.  280, 
JBeauchamp  v.  Earl  of  Hardwicke. 

But  this  must  be  understood  only  where  there  are  Several  papers  par- 
tially disposing  of  the  testator's  property,  and  neither  of  which  purports 
to  be  in  itself  a  complete  will.  If  there  are  two  separate  papers,  both 
•called  wills,  inconsistent  with  each  other,  it  is  not  the  rule  to  prove  both 
in  the  ecclesiastical  courts.  The  last  is  the  will.  From  the  nature  of 
the  instrument  it  revokes  the  other.  If  the  last  purports  to  be  the  whole 
"will,  a  complete,  substantive  will,  they  do  not  prove  both.  Unless  there 
is  something  to  show  it  was  meant  to  be  coupled  with  another  instru- 
ment, it  is  not  taken  to  be  a  codicil. 

3  Mod.  208,  Kitchen  v.  Basset;  4  Ves.  J.  616,  Crosby  v.  Macdoual.} 

||  Unless  a  will  of  personalty  is  made  and  proved  according  to  the  forms 
required  by  the  nineteenth,  twentieth,  and  twenty-first  sections  of  the 
statute  of  frauds,  29  Car.  2,  c.  3,  above  set  out  as  to  nuncupative  testa- 
ments, or  unless  it  is  the  case  of  a  soldier  on  actual  military  service, 
within  the  twenty-third  section,  such  will  of  personalty  must,  under  the 
operation  of  the  statute,  be  in  writing. 

Bob.  on  Wills,  1,  183. 

But  it  may  be  effectual  without  the  name  or  seal  of  the  testator,  pro- 
vided the  handwriting  can  be  proved:  and  it  is  good  in  the  handwriting 
of  another  person,  if  signed  by  the  testator,  or  without  his  signature,  if 
it  can  be  shown  to  have  been  made  according  to  his  instructions,  and  to 
have  received  his  approbation. 

Godolph.  O.  L.  part  1,  c.  21:  Comyn's  B.  452 ;  Gilb.  B.  260 ;  2  Phill.  B.  351 ;  1 
Phill.  B.  365  ;  |3 Watts  and  Leroy,  appellants,  and  the  Public  Administrator,  respon- 
dent, 4  Wend.  168.0 

As  to  \\\e  form  of  the  instrument,  the  ecclesiastical  courts  are  not  scru- 
pulous.    A  memorandum,  or  scrap  of  paper,  though  unsigned  and  undated, 


OF  WILLS  AND  TESTAMENTS.       517 

(D)  Of  Wills  in  "Writing.  ■  {Proof  of  Wills.) 

written  by  a  person  in  contemplation  of  death,  and  with  a  design  to  make 
it  operative  after  that  event,  may  be  proved  as  testamentary. 

See  the  cases  stated  in  Linbury  v.  Hyde,  Com.  R.  452 ;  Cox  v.  Basset,  3  Yes.  jnn. 
158  ;  Matthews  v.  Warner,  4  Ves.  200;  Harris  v.  Bedford,  2  Phill.  R.  177;  Chaworth 
v.  Beach,  4  Ves.  565;  Thomas  v.  Wall,  3  Phill.  R.  23;  Friswell  v.  Moore,  3  Phill. 
R.  135. 

But  if  the  paper  is  left  unfinished  by  the  testator  when  he  had  an  op- 
portunity of  finishing  it,  or  if  it  carry  on  the  face  of  it  evidence  of  an  in- 
tention to  perfect  it  by  some  further  solemnity,  it  will  not  be  received  as 
a  testamentary  disposition. 

Griffin  v.  Griffin,  cited  4  Ves.  197  ;  and  see  9  Ves.  249  ;  1  Dow.  R.  437  ;  1  Meriv. 
503.    j3  See  Harrison  v.  Rowan,  3  Wash.  C.  C.  R.  580.£f 

But  the  mere  intention  to  have  the  paper  copied  is  not  such  a  further 
solemnity,  if  the  testator  is  prevented  by  death  from  executing  a  fair  copy. 

Huntington  v.  Huntington,  2  Phill.  R.  213  ;  and  sec  3  Ibid.  109 ;  j3  Dunlop  v.  Dun- 
lop,  10  Watts,  153.9' 

The  mind  and  intention  apparent  in  the  paper  are  every  thing,  and 
the  form  is  comparatively  nothing. 

See  Nichols  v.  Xicholls,  2  Phill.  R.  180. 

Even  if  a  testator,  by  a  paper  subsequent  to  his  will,  say  that  he  has 
bequeathed  property  by  the  will,  which  is  not  bequeathed  by  it,  the  paper 
may  be  proved  as  a  testamentary  paper,  and  the  property  may  pass  by 
it.  And  if  the  instrument  is  in  form  of  a  deed  of  gift,  if  its  purpose  is 
testamentary  and  not  to  operate  till  death,  the  Ecclesiastical  Court  will 
grant  probate  of  it. 

"  Druce  v.  Denison,  6  Ves.  397 ;  Thorold  v.  Thorold,  1  Phill.  R.  1 ;  and  see  2  Ves. 
&  B.  378  ;  1  Phill.  216  ;  2  Phill.  575. 

No  particular  materials  are  requisite  for  the  writing  of  the  paper ;  it 
may  be  in  pencil  or  in  ink  ;  but  when  the  question  is,  whether  it  is  a  final 
testamentary  disposition,  or  a  mere  memorandum,  preparatory  to  some 
formal  disposition,  the  circumstance  of  its  being  in  pencil  or  ink  is  ma- 
terial :  and  the  will  may  be  in  the  shape  of  answers  to  questions,  provided 
it  appear  to  be  spontaneous. 

1  Phill.  1 ;  2  Phill.  R.  173  ;  1  Phill.  R.  33. 

It  has  been  regretted  by  Lord  Eldon,  in  a  case  where  the  testator  left 
four  inconsistent  testamentary  papers,  and  probate  was  granted  of  all  of 
them,  that  the  provisions  of  the  statute  of  frauds  do  not  apply  to  wills 
of  personalty. 

5  Ves.  280.|| 

See  titles  "Executors  and  Administrators"  and  "Legacies,"  and 
Burn's  Ecclesiastical  Law,  tit.  Wills,  (8th  edit.) 

III.   What  shall  be  sufficient  Proof  of  a  Will. 

A  written  will,  when  it  is  written  with  the  testator's  own  hand,  proves 
itself,  and  therefore  needs  not  the  help  of  witnesses  to  prove  it  ;(a)  and  for 
this  cause,  if  a  man's  will  be  found  written  fair  and  perfect,  with  his  own 
hand,  after  his  death,  although  it  be  not  subscribed  with  his  name,  sealed 
with  his  seal,  or  have  any  witnesses  to  it,  if  it  be  known  or  can  be  proved  to 
be  his  hand,  it  is  held  to  be  a  good  testament,  and  a  sufficient  proof  of 
itself;  but  if  it  be  sealed  with  his  seal,  and  subscribed  with  the  name  of  the 
testator,  and  can  be  proved  by  witnesses,  it  is  the  more  authentic  ;  and 

2X 


518       OF  WILLS  AND  TESTAMENTS. 

(D)  Of  Wills  in  Writing.     {Proof  of  Wills.) 

"when  it  is  found  amongst  the  choicest  evidence  of  the  testator,  or  fast 
locked  up  in  a  safe  place,  it  is  the  more  esteemed ;  for  if  it  be  written  in 
another  hand,  and  the  testator's  hand  and  seal,  or  one  of  them,  not  to  it, 
although  it  be  found  in  such  a  place  as  before,  yet  some  proof  will  be  ex- 
pected of  it  further  by  witnesses  in  that  case  ;  and  if  writing  be  found 
under  the  testator's  own  hand,  yet  if  it  be  but  a  scribbling  writing,  writ- 
ten copy  wise,  with  a  great  distance  between  every  line,  without  any  date, 
in  strange  characters,  with  many  interlineations,  and  lying  amongst  his 
void  papers,  or  the  like ;  this  will  not  be  esteemed  a  sufficient  will,  nor  a 
good  proof  of  it,  but  it  shall  be  accounted  rather  a  draft  or  image  of  the 
testator's  will,  for  a  direction  to  him  after  to  make  his  will  by ;  and  yet 
if  it  can  be  proved  that  the  testator  did  declare  himself  that  this  should 
be  his  will,  this  will  be  a  good  will,  and  a  good  proof  of  it. 

Swinb.  part  4,  £28,  and  part  7,  \  13.  j8  (a)  When  the  will  is  written  wholly  by  the 
testator  himself,  it  is  said  by  the  civilians  to  be  an  holograph  will  or  testament.  See 
Civil  Code  of  Louisiana,  art.  1581 ;  5  Toull.  n.  357  ;  1  Stuart's  (L.  C.J  Rep.  327.£f 
N.  B.  The  law  in  these  particulars,  with  respect  to  wills  of  lands,  d'e,  is  altered  by 
29  Car.  2,  c.  3,  before  taken  notice  of,  which  makes  it  necessary  for  the  will  to  be  sub- 
scribed by  the  testator,  or  some  one  in  his  presence,  and  to  be  subscribed  in  his  pre- 
sence by  three  witnesses.     /3  See  Harrison  v.  Burgess,  1  Hawks,  384.$ 

If  it  be  proved,  that  the  testator  said  his  testament  was  in  such  a  schedule, 
in  the  hands  of  J  S,  and  J  S  produce  a  writing,  deposing  it  to  be  the  same, 
this  is  a  sufficient  proof:  but  if  he  says  withal,  it  is  written  with  his  own 
hand,  then  it  seems  some  other  proof,  as  by  comparing  hands,  or  the 
like,  that  it  is  his  hand  wherein  it  is  written,  will  be  expected. 

Swinb.  part  4,  §28. 

If  the  witnesses  will  prove  the  writing  produced  to  be  the  last  will  of 
the  testator,  or  that  he  said  it  was,  or  it  should  be  his  last  will,  or  that 
it  was  the  same  writing  that  was  showed  to  them,  and  whereunto  they 
are  Avitnesses,  although  they  never  heard  it  read,  or  set  their  hands  to  it, 
it  is  a  sufficient  proof. 

Swinb.  part  4,  £  28. 

Where  there  is  no  question  or  opposition  moved  or  had  about  or  against 
a  will,  there  the  oath  of  the  executor  alone  is  esteemed  a  sufficient  proof 
of  it,  and  in  that  case  regularly  no  other  proof  is  required;  and  where  more 
proof  is  necessary,  it  is  in  the  discretion  of  the  ordinary  what  proof  to  ad- 
mit or  allow  ;  and  those  witnesses,  for  number,  nature,  and  quality,  or  such 
other  proof  that  he  deems  and  accepts  for  sufficient,  is  sufficient ;  and  the 
will  so  proved  by  such  witnesses,  or  such  other  proof,  is  sufficiently  proved. 

{  Two  witnesses,  at  least,  are  essential,  in  Pennsylvania,  to  the  proof  of  every  testa- 
mentary writing.  And  that  seems  to  be  also  the  law  of  England.  1  Dall.  278,  Lewis 
v.  Maris. } 

[The  doctrine  above  stated  applies  only  to  a  will  of  personal  estate ; 
for  if  a  bill  be  brought  to  establish  a  will  of  real  estate  against  an  heir, 
all  the  witnesses,  if  living,  must  be  examined  as  to  the  sanity  of  the  tes- 
tator. And  this  rule  is  so  strictly  insisted  upon  by  courts  of  equity,(a) 
that  they  will  not  dispense  with  it,  though  the  heir  at  law,  by  his  answer, 
state,  that  he  believes  the  will  to  have  been  duly  made,  &c. 

Ogle  v.  Cook,  1  Vcs.  177;  Grayson  v.  Atkinson,  2  Ves.  454;  Townshend  v.  Ives,  1 
Wils.  210;  ||  Harris  v.  Ingledew,  3  P.  Wins.  92;  and  sec  Powell  v.  Cleaver,  2  Bro. 
C.  C,  504.  And  Lord  Eldon,  C,  held,  that  on  an  issue  devisavit  vel  non  directed  by  the 
Court  of  Chancery,  all  the  witnesses  to  the  will  must  be  examined.  Bootle  v.  Blun- 
dcll,  Coop.  C.  C.  136;  19  Ves.  494,  S.  C. ;  and  see  Wood  v.  Stanc,  8  Price,  013.  But 
in  a  late  case,  where  on  such  an  issue  only  one  witness  was  examined,  Sir  J.  Leach, 


OF   WILLS   AND   TESTAMENTS.      519 

(D)  Of  Wills  in  Writing.     (Proof  of  Wills.) 

M.  R.,  refused  the  heir-at-law  a  new  trial  on  that  ground.  Wright  v.  Tathnm,  1830.|| 
(a)  Potter  v.  Potter,  1  Ves.  274.  The  discovery  of  the  insanity  of  the  testator  has  oc- 
casioned the  setting  aside  of  a  will,  even  after  twenty  years'  possession  under  it,  and 
that  too  against  a  purchaser.     Squire  v.  Pershall,  8  Vin.  Abr.  109,  pi.  13.] 

|j  Where  the  evidence  proves  the  execution  of  the  will,  but  the  witnesses 
have  not  been  examined  as  to  the  sanity  of  the  testator,  the  cause  will  be 
adjourned  at  the  hearing,  and  liberty  given  to  exhibit  an  interrogatory 
to  prove  his  sanity. 
Abrahams  v.  Winshup,  1  Russell,  52G. 

A  will  of  real  estale  cannot  be  proved  on  a  reference  before  the  master. 
Leohmere  v.  Brazier,  2  Ja.  &  W.  289.  || 

All  persons,  male  and  female,  rich  and  poor,  are  esteemed  competent 
witnesses  to  prove  a  will,  save  only  such  as  are  infamous,  as  perjured  per 
sons,  and  the  like;  and  such  as  want  understanding  and  judgment,  as 
children,  infants,  and  the  like ;  and  such  as  are  presumed  to  bear  affec- 
tion, as  kindred,  tenants,  servants,  and  the  like. (a)  A  legatee  is  reputed 
a  competent  witness  to  prove  any  other  part  of  the  will  but  his  own 
legacy,  or  to  prove  any  thing  against  himself  touching  his  own  legacy, 
but  not  otherwise ;  and  therefore,  Avhere  there  are  two  witnesses  of  a 
will,  wherein  either  of  them  have  somewhat  bequeathed  unto  himself,  this 
will  cannot  be  sufficiently  proved  for  those  legacies,  but  for  the  rest  of 
the  will  it  may  be  sufficiently  proved.     But  see  posted. 

Swinb.  part  4,  \  24.  \{a)  Qu.  Whether  the  official  signature  of  a  vice-consul  abroad 
to  a  certificate  on  the  will,  is  a  sufficient  signature  as  a  witness  within  the  statute. 
11  Ves.  240. ||  /3See  as  to  the  qualification  of  the  witnesses  to  a  will,  Hampton  v.  Gar- 
land, 2  Hayw.  147  ;  Eelbeck's  devisees  v.  Granberry,  2  Hayw.  232 ;  Bateman  v.  Ma- 
riner, 1  Murph.  176 ;  Martin  v.  Hough,  2  Hawks,  368 ;  Daniel  v.  Proctor,  1  Dev. 
428.tf 

[It  has  been  a  considerable  question,  who  those  witnesses  were  that  are 
described  in  the  act  by  the  word  "credible,"  as  will  appear  from  the  fol- 
lowing cases :  T  I,  seised  of  hereditaments  in  fee,  made  his  will,  and  thereby 
devised  the  same  to  W  H,  and  his  heirs,  and  signed,  sealed  and  published 
the  will  in  the  presence  of  three  witnesses,  who  subscribed  the  same.  One 
of  the  witnesses  was  W  II,  the  devisee.  It  was  objected,  that  this  devise 
was  void,  W  II  not  being  a  credible  witness  thereto  under  the  statute  of 
frauds.  On  the  part  of  the  devisee  it  was  contended,  that  the  will  was 
good  notwithstanding  the  statute,  for  the  devisee  was  a  man  of  indisputable 
credit:  that,  though  he  could  not  be  sworn  upon  a  trial,  yet  it  could  not  be 
said  but  that  there  were  three  witnesses  to  the  will,  and  that  the  will  had 
been  well  proved  by  the  other  two  witnesses :  that  there  was  a  difference 
between  a  matter  which  went  to  the  credit  of  a  Avitness's  testimony,  and  a 
matter  which  went  in  bar  of  it ;  that  the  former  excluded  persons  from 
being  witnesses,  as  if  a  man  were  attainted  of  treason,  or  convicted  of 
perjury  or  forgery,  or  any  other  matter  of  attaint;  but  that,  where  there 
was  only  an  interest  which  barred  him  from  being  a  witness,  but  did  not 
touch  his  credit,  it  was  otherwise :  that  the  intent  of  the  act  was  to  prevent 
perjuries ;  but  this  could  not  be  within  the  mischief  of  the  statute  ;  be- 
cause the  devisee,  being  a  witness,  could  not  be  sworn  and  examined  upon 
it ;  and  therefore  the  case  was  out  of  the  statute. 

Hilliard  v.  Jennings,  Com.  R.  91 ;  S.  C,  1  Freein.  510 ;  1  Ld.  Raym.  505,  Ca.  B. 
R.  T.  W.  3,  276,  Garth.  514.  Notd.  In  the  last  reporter,  this  case  is  misstated  in 
several  points;  particularly  by  stating  that  his  credibility  at  signing  depended  upon 
his  competency  at  law,  without  stating  why  the  latter,  viz.:  the  competency  at  law, 


520       OF  WILLS  AND  TESTAMENTS. 

(D)  Of  Wills  in  Writing.     [Proof  of  Wills.) 

was  the  criterion  of  the  former,  viz.,  the  credibility  at  signing  ;  namely,  that  no  person 
who  would  be  incompetent  to  prove  a  will  on  a  trial  could  be  credible  to  attest  it  upon 
the  execution.  And  also  by  narrowing  his  conclusion  to  the  very  case  before  him,  by 
saying,  "the  will  was  void  quoad  the  devise,  and  as  to  the  devise ;"  from  whence  it  is 
natural  to  infer,  that  it  might  have  been  good  as  to  any  other  devise.  Whereas,  if  he 
had  stated  the  general  proposition  or  principle,  the  reader  could  not  have  been  misled. 
The  reason  why  the  emphasis  is  laid  on  that  devise  is,  that,  in  fact,  all  the  rest  of  the 
will  relates  to  personalty,  respecting  which  the  will  was  clearly  good. 

But  it  was  argued  on  the  other  side,  and  so  held  by  the  court,  that  this 
will  was  not  executed  according  to  the  statute  of  frauds  ;  for  that  a  man 
who  could  not  be  a  witness,  which  was  the  plaintiff's  case,  could  not  be  a 
credible  witness  :  that  the  intent  of  the  act  was  to  prevent  frauds  as  well  as 
perjuries ;  which  intent  would  be  evaded  if  the  devisee  should  be  admitted 
to  be  a  witness,  for  he,  being  a  party  interested,  might  be  induced  to  use 
fraud ;  and  it  was  said,  that  the  statute  appointed  three  witnesses,  &c,  to 
the  end  that  the  transaction  might  be  in  such  a  solemn  and  notorious 
manner,  that  they  might  see  that  the  devisor,  being  infirm  as  well  in  under- 
standing as  in  body,  as  all  men  generally  in  extremis  were,  did  not  suffer 
any  imposition  ;  but  that,  if  persons  who  could  not  give  evidence  of  their 
subscription  should  be  admitted  to  be  credible  witnesses,  it  was  to  admit  so 
many  dead  letters  to  be  witnesses,  which  entirely  evaded  the  intention  of 
the  act ;  and  upon  this  point  judgment  was  given  against  the  devisee.] 

A  testator  by  his  will  devised  lands,  and  gave  to  the  wife  of  John  Hailes 
an  annuity  of  201.  a  year,  to  her  sole  and  separate  use ;  and  to  J.  Hailes 
and  his  wife  each  of  them  a  legacy  of  10Z.,  and  charged  his  whole  real 
and  personal  estate  with  the  payment  of  all  his  legacies  and  annuity  :  J. 
Hailes  was  one  of  the  subscribing  witnesses  to  this  will ;  the  legacies  and 
satisfaction  for  the  annuity  were  tendered  and  refused,  and  the  question 
now  was  on  a  special  verdict,  whether  this  will  was  good  and  well  attested 
within  the  statute  of  frauds  and  perjuries  ?  The  court  were  of  opinion, 
that  the  will  was  not  properly  attested,  as  Hailes  was  interested,  and 
therefore  not  a  credible  witness ;  and  gave  judgment  for  the  plaintiff, 
the  testator's  heir  at  law. 

MS.  Rep.  Anstey  v.  Dowsing,  Mich.  1744,  B.  R.;  [2  Stra.  1253,  S.  C.  This  cause 
was  afterwards  carried  on  appeal  to  the  Exchequer-chamber,  where  there  was  a  differ- 
ence of  opinion  among  the  judges:  but  the  parties  compounding,  it  was  never  deter- 
mined.    1  Ves.  503. j 

[On  a  bill  for  establishment  of  a  will  in  the  case  of  an  infant,  the  objec- 
tion taken  was,  that  it  appeared,  on  examination  on  the  interrogatories, 
that  one  of  the  witnesses  to  the  will  was  a  creditor  for  a  bill  of  fees  and 
disbursements,  and  had  not  released.  It  was  insisted,  that,  on  an  account 
taken,  he  would  be  found  not  to  be  a  creditor.  The  Lord  Chancellor  sent 
it  to  the  master,  to  inquire  whether  he  was  so  ;  then  it  was  objected,  that 
the  condition  of  the  witness,  as  was  determined  in  the  case  of  Anstey  and 
Dowsing,  must  be  taken  to  be  at  the  time  of  attestation  ;  and  that  if  in- 
terested then,  he  could  not  be  a  good  witness.  It  was  answered,  that  if 
that  doctrine  prevailed,  it  would  overturn  many  wills,  for  servants  were 
often  made  witnesses,  who  generally  had  legacies  given  them.  But,  on  the 
master's  special  report,  it  appeared,  that  the  witness  to  the  will,  at  the 
time  of  the  second  examination,  was  not  a  creditor  of  the  testator;  and 
it  not  appearing,  at  the  time  of  attestation,  that  he  was,  Lord  Hardwicke 
said,  he  would  not  enter  into  a  minute  inquiry  whether  he  was  or  not. 
Price  v.  Loyd,  1  Ves.  503;  Ibid.  374.] 


OF  WILLS  AND  TESTAMENTS.       521 

(D)  Of  Wills  in  Writing.     {Proof  of  Wills.) 

In  order  to  remove  the  doubts  which  had  arisen  who  were  to  be  deemed 
legal  witnesses  within  the  statute  of  29  Car.  2,  c.  3,  §  5,  it  is  enacted  by 
25  Geo.  2,  c.  6,  "That  any  person  shall  attest  the  execution  of  any  will  or 
codicil,  which  shall  be  made  after  the  24th  June,  1752,  to  whom  any  bene- 
ficial devise,  legacy,  estate,  interest,  gift,  or  appointment  of  or  affecting 
any  real  or  personal  estate,(a)  other  than  and  except  charges  on  lands, 
tenements,  or  hereditaments,  for  payment  of  any  debt  or  debts,  shall  be 
thereby  given  or  made,  such  devise,  &c,  or  appointment,  shall  so  far  only 
as  concerns  such  persons  attesting  the  execution  of  such  will  or  codicil,  or 
^  any  person  claiming  under  him,  be  utterly  null  and  void  :  and  such  person 
shall  be  admitted  as  a  witness  to  the  execution  of  such  will  or  codicil, 
within  the  intent  of  the  act  of  29  Car.  2,  notwithstanding  such  devise,  &c. 

||(a)  Sir  W.  Grant,  M.  R.,  held  that  a  legacy  to  a  subscribing  witness  to  a  will  of 
personalty  was  void,  since  the  statute  extended  to  all  wills  and  codicils.  Lees  v. 
Summersgill,  17  Yes.  509.  But  it  has  since  been  decided,  that  the  statute  does  not 
extend  to  wills  of  personal  estate.  Brett  v.  Brett,  3  Addam's  R.  210 ;  Emanuel  v. 
Constable,  3  Russell,  43G.|| 

"And  it  is  also  enacted,  that  in  case,  by  any  will  or  codicil  made  or  to 
be  made,  any  lands,  tenements,  or  hereditaments  are  or  shall  be  charged 
with  debt;  and  any  creditor,  whose  debt  is  so  charged,  hath  attested,  or 
shall  attest,  the  execution  of  such  will  or  codicil,  such  creditor  shall  be 
admitted  as  a  witness  to  the  execution  of  such  will  or  codicil,  within  the 
intent  of  the  said  act.  That  if  any  person  hath  attested  the  execution  of  any 
will  already  made,  or  shall  attest  the  execution  of  any  will,  &c,  made  on 
or  before  the  24th  June,  1752,  to  whom  any  legacy  is  or  shall  be  thereby 
given,  whether  charged  upon  lands,  tenements,  or  hereditaments,  or  not ; 
and  such  person  before  he  shall  give  his  testimony  concerning  the  execu- 
tion of  such  will,  &c,  shall  have  been  paid,  or  have  accepted  or  released, 
or  shall  have  refused  to  accept  such  legacy  or  bequest,  upon  tender  made 
thereof;  such  person  shall  be  admitted  as  a  witness  to  the  execution  of 
such  will,  &c,  within  the  intent  of  the  said  act.  Provided  that  in  case  of 
tender  and  refusal,  such  legatee  shall  in  no  wise  be  entitled  to  such  legacy, 
but  shall  be  barred  from  his  legacy ;  and  in  case  of  acceptance,  such 
legatee  shall  retain  his  legacy,  which  shall  have  been  so  paid,  satisfied,  or 
accepted,  notwithstanding  such  will  or  codicil  shall  afterward  be  adjudged 
to  be  void.  That  in  case  a  legatee,  &c,  who  hath  attested  the  execution 
already  made,  or  which  shall  be  made  on  or  before  June  24,  1752,  shall 
die  in  the  testator's  lifetime,  or  before  he  shall  have  received  or  released 
or  refused  (on  tender)  his  legacy,  such  legatee  shall  be  a  legal  witness  to 
the  execution  of  such  will,  &c,  within  the  intent  of  the  said  act  of  29  Car. 
2 ;  proviso,  that  the  credit  of  every  such  witness  so  attesting,  &c,  and 
all  circumstances  relating  thereto,  shall  be  subject  to  the  consideration 
and  determination  of  the  court  and  the  jury  before  whom  any  such  witness 
shall  be  examined,  or  his  testimony  or  attestation  made  use  of;  or  of  the 
court  of  equity  in  which  his  testimony  or  attestation  shall  be  made  use  of; 
in  like  manner  as  the  credit  of  witnesses  in  other  cases  ought  to  be  con- 
sidered of  and  determined.  No  person  to  whom  any  beneficial  estate,  in- 
terest, gift,  or  appointment  shall  be  given  or  made,  which  is  thereby  enacted 
to  be  null  and  void,  or  who  shall  have  refused  to  receive  any  such  legacy 
or  tender  as  aforesaid,  and  who  shall  have  been  examined  as  a  witness 
concerning  the  execution  of  such  will  or  codicil,  shall,  after  he  shall  have 
been  so  examined,  demand,  or  take  possession  of  or  receive  any  profit  or 

Vol.  X.— GO  2x2 


522       OF  WILLS  AND  TESTAMENTS. 

(D)  Of  Wills  in  Writing.     {Proof  of  Wills.) 

benefit  of  or  from  any  such  estate,  &c,  given  by  any  such  will  or  codicil ; 
or  demand,  receive,  or  accept  from  any  person,  any  such  legacy  or  bequest, 
or  any  satisfaction  or  compensation  for  the  same,  in  any  manner,  or  un- 
der any  colour  or  pretence  whatsoever.  This  act  not  to  extend  to  the  case 
of  any  heir  at  law,  or  of  any  devisee  in  a  prior  will  or  codicil  of  the  same 
testator,  executed  and  attested  according  to  the  act  of  29  Car.  2,  or  any 
person  claiming  under  them  respectively,  who  has  been  in  quiet  possession 
for  two  years  next  preceding  the  6th  May,  1751,  as  to  such  lands,  tene- 
ments, or  hereditaments,  whereof  he  has  been  in  quiet  possession  as  afore- 
said. This  act  not  to  extend  to  any  will  or  codicil,  the  validity  or  due  exe- 
cution whereof  hath  been  contested  in  law  or  equity  by  the  heir  of  such 
devisor,  or  the  devisee  in  any  such  prior  will,  or  will  or  codicil  so  con- 
tested, or  any  part  thereof,  or  for  obtaining  any  codicil,  for  recovering  the 
lands,  &c,  mentioned  to  be  devised  in  any  other  judgment  or  decree  relative 
thereto,  on  or  before  the  said  6th  of  May,  1751,  and  which  has  been 
already  determined  in  favour  of  such  heir  at  law,  or  devisee  in  such  prior 
will  or  codicil,  or  any  person  claiming  under  them  respectively,  or  which 
is  still  depending,  and  has  been  prosecuted  with  due  diligence;  but  the 
validity  of  every  such  will  or  codicil,  and  the  competency  of  the  witnesses 
thereto,  shall  be  adjudged  and  determined  in  the  same  manner  as  if  this 
act  had  never  been  made.  No  possession  of  any  heir  at  law,  or  devisee  in 
such  prior  will  or  codicil  as  aforesaid,  or  of  any  person  claiming  under  them 
respectively,  which  is  consistent  with,  or  may  be  warranted  by,  or  under 
any  will  or  codicil  attested  according  to  the  intent  of  this  act,  or  where  the 
estate  descended  or  might  have  descended  to  such  heir  at  law,  till  a  future 
or  executory  devise  by  virtue  of  any  will  or  codicil  attested  according  to 
this  act,  should  or  might  take  effect,  shall  be  deemed  to  be  a  possession 
within  the  intent  of  the  clause  herein  last  contained.  This  act  shall  extend 
to  such  of  the  British  colonies  in  America  where  the  29  Car.  2  is  by  act 
of  assembly  made,  or  by  usage  received  as  law ;  or  where  by  act  of  assembly 
or  usage  the  attestation  and  subscription  of  a  witness  or  witnesses  are 
made  necessary  to  devises  of  lands,  &c,  and  shall  have  the  same  force  and 
effect  in  the  construction  of,  or  for  the  avoiding  of  doubts  upon  the  said 
acts  of  assembly,  and  laws  of  the  said  colonies,  as  the  same  ought  to  have 
in  the  construction  of,  or  for  the  avoiding  doubts  upon,  the  said  act  in 
England.  Provided  always,  that  as  to  the  cases  arising  in  any  of  the  said 
colonies,  no  such  devise,  legacy,  or  bequest  aforesaid  shall  be  made  null 
and  void  by  virtue  of  this  act,  unless  the  will  or  codicil  whereby  such 
devise,  &c,  shall  be  given,  shall  be  made  after  March  1,  1753." 

[But,  notwithstanding  this  statute,  the  question  respecting  the  credibility 
of  witnesses  was  again  brought  under  consideration  in  the  Court  of  King's 
Bench  on  a  special  verdict,  in  the  case  of  Wyndham  and  Chetwynd.  In 
that  case  W  C  being  seised  of  lands,  &c,  made  his  will  and  a  codicil 
thereto,  bearing  date  14th  May,  1750 ;(«)  and  after  devising  certain  parts 
thereof  in  the  will,  charged  the  residue  of  his  real  and  personal  estates 
with  the  payment  of  all  his  just  debts,  legacies  and  encumbrances.  The 
will  and  codicil  were  duly  executed  in  the  presence  of,  and  subscribed  by, 
S  S,  11  B,  and  I  H. — S  S  and  I  H  were  attorneys  at  law,  and  had  been 
employed  by  W  C,  in  or  about  the  year  1747,  to  solicit  a  private  act  of  par- 
liament, and  charged  him  as  debtor  in  their  books  for  the  fees  and  expenses 
of  soliciting  thereof,  the  sum  of  318^.,  and  the  charge  continued  so  until 
and  after  the  death  of  W  C.  Some  time  after  which  S  S  and  R.  B  delivered  a 


OF  WILLS  AND  TESTAMENTS.       523 

(D)  Of  Wills  in  Writing.     {Proof  of  Wills.) 

bill  for  passing  this  act  to  the  trustees  appointed  in  the  act  for  the  pur- 
poses therein  mentioned  :  there  was  a  clause  in  the  act  for  payment  of  the 
expenses  attending  the  same,  and  before  the  examination  of  S  S  and  R  B 
as  witnesses  on  this  ejectment,  there  was  received  from  the  trustees  the 
sum  of  302/.  4s.  8hd.,  and  the  trustees  were  willing  to  have  paid  the  re- 
mainder of  the  demand,  if  it  had  not  been  for  a  miscalculation.  There 
was  likewise  a  current  account  open  and  subsisting  between  S  S,  R  B,  and 
W  C  for  other  business,  on  the  balance  of  which  account,  if  stated  at  that 
time,  S  S  and  R  B  were  indebted  to  W  C  138?.  14s.  lOd.  Also  at  the 
death  of  W  C  there  was  due  and  owing  from  him  to  I  H  the  other  sub- 
scribing witness,  who  was  his  apothecary,  18/.  5s.  5c/.,  111.  whereof  were 
due  on  the  25th  December,  1749,  on  simple  contract ;  W  C  dieth  on 
17th  May,  1750.  There  were  mortgages  upon  W  C's  estates  at  the  time 
of  his  signing  the  said  will  and  codicil,  and  of  his  death,  to  the  amount 
of  24,000/.  And  at  the  time  of  his  death  he  owed  1600/.  upon  bond,  and 
2874/.  upon  simple  contract.  His  personal  estate  then  amounted  to 
13,972/.,  and  was  sufficient  to  pay  all  the  simple  contract  and  bond  debts. 
The  estates  in  mortgage  were  of  sufficient  value  to  discharge  the  encum- 
brances thereupon.  The  executor  of  W  C  paid  I  H,  one  of  the  witnesses, 
the  sum  of  18/.  5s.  5d.  after  W  C's  death  and  before  his  examination  in 
the  cause.  Upon  these  facts  the  question  was,  Whether  these  paper  writ- 
ings, or  either  of  them,  were  or  were  not  duly  executed,  so  as  to  pass 
lands  ?  This  depended  upon  two  questions  ;  first,  Whether  the  facts,  as 
stated,  did  make  these  interested  witnesses,  and  render  them  not  credible  ? 
Secondly,  if  so,  Whether  the  subsequent  circumstances  did  not  remove 
the  objection,  and  re-establish  their  credibility  ?  On  the  first  it  was  ar- 
gued for  the  devisee,  that  these  witnesses  were  no  legatees,  and  derived 
nothing  from  the  gift  or  bounty  of  the  testator;  that  they  were  justly  en- 
titled to  payment  of  their  debts,  though  no  will  had  ever  been  made ;  that 
the  personal  assets  were  the  proper  fund  for  them  to  resort  to,  and  that  it 
was  sufficient  to  pay  their  demands,  therefore  they  were  not  interested  in 
the  charge  on  the  real  estate.  On  the  second,  it  was  contended  that  they 
were  competent  witnesses  at  the  time  of  the  examination,  their  debts  be- 
ing then  discharged.  That  the  word  credible  in  the  statute  29  Car.  2,  c. 
3,  was  an  ambiguous  expression,  and  capable  of  many  senses,  but  there 
seemed  to  be  a  parliamentary  exposition  thereof  in  the  statute  of  the  4th 
and  5th  Anne,  c.  16,  §  14,  whereby  three  witnesses  were  required  to  au- 
thenticate a  nuncupative  will,  and  it  was  declared,  that  such  as  were  good 
witnesses  in  trials  at  common  law  should  be  deemed  good  witnesses  to 
establish  a  nuncupative  will.  Now  allowing  the  same  exposition  to  take 
place  on  the  statute  of  frauds,  then,  as  these  witnesses  would  be  unexcep- 
tionable on  a  trial  at  law  in  respect  of  interest,  so  they  would  be  compe- 
tent, and,  therefore,  credible  witnesses  to  the  present  devise.  On  the 
other  side,  it  was  argued  for  the  heir  at  law,  that,  at  the  time  of  the  at- 
testation, the  witnesses  were  interested,  and  therefore  incompetent ;  and 
that  then,  and  not  the  time  of  examination,  was  the  proper  time  of  in- 
specting their  credibility,  else  it  would  open  greater  opportunities  of  fraud 
and  perjury  than  existed  before  the  act ;  that  it  would  be  setting  up  wit- 
nesses to  hire,  and  would  put  the  validity  of  a  will  in  the  power  of  the 
witnesses,  by  releasing  or  not  releasing  their  interest.  That  if  a  witness 
was  unexceptionable  at  the  time  of  attestation,  and  afterwards  became 
infamous  or  insane,  the  will  was  nevertheless  a  good  will,  which  proved 
that  his  condition  at  the  time  of  attestation  was  alone  to  be  regarded  : 


524       OF  WILLS  AND  TESTAMENTS. 

(D)  Of  Wills  in  Writing.     {Proof  of  Ullls.) 

that  the  word  credible  meant  something  more  than  competent ;  that  the 
law  required  competency  before,  and  it  was  not  to  be  imagined  that  the 
learned  compiler  of  this  statute,  Lord  Hale,  would  put  in  a  word  that  at 
best  was  superfluous  ;  that  in  the  statute  of  the  13th  Car.  2,  against  deer- 
stealing,  and  in  all  the  game  laws,  the  expression  of  credible  witnesses 
was  used,  which  had  always  been  understood  to  mean  more  than  compe- 
tent, and  to  give  the  justices  a  discretion,  whether  they  Avould  convict 
upon  such  testimony  or  not,  though  the  witnesses  were,  in  law,  strictly 
admissible ;  and  the  cases  of  Hilliard  and  Jennings,  and  Anstey  and 
Dowsing,  were  cited.  After  the  court  had  taken  some  time  to  consider 
of  it,  they  all  agreed,  that  the  will  was  duly  attested  by  three  credible 
witnesses.  And  Lord  Mansfield(6)  delivered  a  very  elaborate  judgment, 
in  which  he  took  occasion  to  enter  very  fully  into  the  discussion  of  the 
meaning  of  the  word  "  credible  "  in  the  statute  of  frauds  ;  which  his  lord- 
ship considered  as  capable  of  being  conferred  on  an  interested  witness 
by  payment  or  a  release. 

Wyndham  v.  Chetwynd,  1  Burr.  414.  {See  1  Johns.  Ca.  IGo,  Jackson  v.  Woods.} 
|!(a)  Before  the  time  when  the  statute  25  Gr. 2,  c.  0,  took  effect. ||  (6)  In  a  subsequent 
ease  it  is  stated  that  Lord  Mansfield,  previous  to  his  delivering  his  opinion  in  the  last- 
mentioned  case,  declared,  that  il  was  his  own,  and  he  was  personally  answerable  for  all 
its  errors  ;  the  judgment  of  the  court  being  general,  that  they  held  the  will  duly  exe- 
cuted according  to  the  statute.     Lord  Camden,  arg.  in  Doe  v.  Kersey,  infra. 

John  Knott,  by  a  paper-Writing  purporting  to  be  his  will,  devised  his 
real  estates  to  his  wife  for  life,  and,  after  the  decease  of  his  wife,  devised 
certain  hereditaments,  therein  particularly  described,  to  trustees  and 
their  successors  for  ever,  upon  trust  to  apply  the  rents  and  profits  thereof 
to  such  poor  people  within  the  lordship  of  Maulsmeaburn  as  he  therein 
named,  viz.,  indigent  orphans  under  ten  years  of  age,  unable  to  labour, 
poor  aged  people  utterly  past  labour,  poor  impotent  people,  lame  or 
blind,  and  who  could  not  labour ;  and  to  put  out  the  children  of  such 
poor  people  as  above,  either  sons  or  daughters,  apprentices  as  soon  as 
they  were  fit  for  it.  This  paper-writing  was  signed,  sealed,  and  published 
by  the  said  John  Knott,  in  the  presence  of  Henry  Holme,  Robert  Burra, 
and  John  Mitchell,  who  subscribed  the  same  in  the  presence  of  the  devi- 
sor. Henry  Holme  and  Robert  Burra  were  two  of  the  trustees  above 
named  ;  and  they,  and  also  John  Mitchell,  the  other  subscribing  witness, 
were,  at  the  time  of  attesting,  and  long  afterwards,  seised  in  fee-simple 
of  lands,  &c,  within  the  lordship  and  township  of  Maulsmeaburn  afore- 
said, and  during  the  time  aforesaid  were  possessed  of  and  occupied  the 
same,  and  inhabited  within  the  lordship ;  the  lordship  of  Maulsmeaburn 
was  a  large  district,  and  maintained  its  own  poor,  and  the  witnesses  to 
the  will  were  chargeable  and  taxable,  and  were  actually  charged,  assessed, 
taxed,  and  paid  towards  the  poor,  and  all  other  taxes  of  the  said  lordships. 
It  appealed  that  Henry  Holme  and  Robert  Burra  had,  previous  to  the 
time  of  the  trial,  released  all  their  interest  under  the  said  paper-writing, 
purporting  to  be  the  will  of  the  said  John  Knott,  to  the  other  trustees 
therein  named ;  and  also  that  they,  and  John  Mitchell  the  other  witness, 
had  severally  conveyed  away  and  disposed  of  all  their  respective  estates 
and  interest  lying  in  the  within  lordship  and  township  of  Maulsmeaburn 
before  the  trial.  And  the  question  was,  Whether  this  paper-writing, 
purporting  to  be  the  will  of  John  Knott,  was  sufficient  to  pass  the  here- 
ditaments in  manner  above  mentioned'.''  which  depended  upon  the  ques- 
tion, Whether  the  release  and  disposition  of  their  respective  estates  and 


OF  WILLS  AND  TESTAMENTS.       525 

(D)  Of  Wills  in  Writing.     {Proof  of  Wills.) 

interests  had  restored  the  credit  of  the  witnesses  ?  for,  if  not,  it  must  fall 

to  the  ground,  as  the  objection  to  it  was  not  cured  by  the  act  of  the  25 

G.  2.    And  it  was  held  by  Olive,  Bathurst,  and  Gould,  against  the  opinion 

of  {M  Pratt,  0.  J.,  that  a  witness,  incompetent  at  the  time  of  attestation, 

might  purge  himself  afterwards,  either  by  release  or  payment,  and  become 

competent  by  the  rule  of  law.     But  the  cause  was  afterwards,  to  avoid 

any  further  litigation,  adjusted  by  agreement,  and  the  parties  divided  the 

estate  between  them. 

Doe  on  dem.  of  Hindson  v.  Kersey  ;  4  Burn's  Eccl.  L.  88.  ||  See  Clarke  v.  Gannon, 
1  By.  &  Moo.  Ca.  31. jj     {*}  His  argument  in  this  case  is  inserted  in  1  Day,  41,  n.} 

||  Where  a  witness  was  interested  under  the  will  at  the  time  of  his  exami- 
nation, though  he  was  not  so  at  the  execution  of  the  will  or  at  the  death 
of  the  testator,  Lord  Thurlow  held  him  a  good  witness  without  argument. 

Brograve  v.  Winder,  2  Yes.  634. 

In  a  late  case,  A  B  by  his  will,  devised  an  estate  to  M  B,  for  life ;  and 
at  her  decease  to  E  II,  and  her  heirs  for  ever.  T  II,  one  of  the  three 
attesting  witnesses,  was  the  husband  of  E  II,  at  the  time  of  the  attesta- 
tion. The  testator  died  shortly  after  making  the  will,  leaving  M  B  and 
E  II,  and  the  witness  T  H,  surviving.  E  H  died  in  the  lifetime  of  M  B, 
leaving  T  H,  her  husband,  surviving,  and  the  plaintiff,  her  eldest  son  and 
heir  at  law.  T  H  died  in  1819,  and  M  B,  the  first  devisee  for  life,  in 
1820.  And  the  question  was,  Whether  the  will  was  duly  attested  on  the 
ground  of  the  interest  of  T  H,  the  witness,  in  right  of  his  wife's  remainder 
under  the  will.  For  the  plaintiff  it  was  contended,  upon  the  authorities 
of  Holdfast  dem.  Anstey  v.  Dowsing,  Wyndham  v.  Chetwynd,  and  Hind- 
son  v.  Kersey,  that  a  party  having  an  interest  under  a  will,  but  divesting 
himself  of  it  previous  to  his  examination,  might  be  a  witness  to  prove  the 
will ;  and  consequently,  that  T  II,  if  he  had  been  alive,  might  have  been 
called  as  a  witness,  since  he  derived  no  benefit,  his  wife  having  died  be- 
fore the  life-estate  of  M  B,  was  determined :  and  even  that  if  he  took  any 
benefit  under  the  will,  the  statute  25  G.  2,  c.  0,  extinguished  it.  For  the 
defendant  it  was  argued,  that  T  II  was  not  a  credible  witness,  since  he 
had  an  interest  at  the  time  of  his  attestation ;  and  that  the  statute  could 
not  extinguish  the  interest,  since  it  was  his  wife's,  and  not  legally  his 
own.  The  Court  of  King's  Bench  gave  a  certificate  that  the  will  was 
not  duly  executed.  Qucere,  if  T  II  had  lived,  whether  he  might  have 
been  a  witness  to  prove  the  will  ? 

Hatfield  v.  Thorp,  5  Barn.  &  A.  589.  || 

But  a  legatee  may  be  a  witness  against  a  will ;  for  the  reason  why  a  le- 
gatee is  not  a  witness  for  a  will  being,  because  he  is  presumed  to  be  partial 
in  swearing  for  his  own  interest,  it  follows  that  a  legatee,  when  he  swears 
against  a  will,  swears  against  his  interest,  and  so  is  the  strongest  evidence. 

Oxendon  v.  Penrice,  Salk.  091,  095.  j3To  exclude  the  testimony  of  a  subscribing 
witness,  his  interest  must  be  derived  from  the  will  itself.  Allen  v.  Allen,  12  Term.  R. 
172.£f 

And  if  it  stand  indifferent  to  the  witnesses,  whether  the  will,  under 
which  they  are  legatees,  and  to  which  they  are  witnesses,  be  valid  or  not ; 
the  witnesses,  though  legatees,  are  credible. 

]3  As  to  who  may  or  may  not  be  examined  as  a  witness  to  a  will,  see  Jackson  v. 
Betts,  G  Cowen,  377  ;  Dan  v.  Brown,  4  Cowen,  483 ;  Jackson  v.  Yiekory,  1  V  end. 
406;  Jackson  v.  Laguere,  5  Cowen,  221;  Jackson  v.  La  Grange,  19  Johns.  380  ; 
Jackson  v.  Thompson,  0  Cowen,  178.0 

Thus,  a  devisee  died  on  the  10th  of  February,  1746,  having  made  a 


526      OF  WILLS  AND   TESTAMENTS. 

(D)  Of  Wills  in  Writing.     {Proof  of  Wills.) 

will,  dated  15th  of  May,  174G,  of  his  whole  estate,  real  and  personal, 
charged  with  debts  and  legacies :  tho  three  subscribing  witnesses,  as  be- 
ing in  his  service  at  his  death,  had  legacies ;  one  30Z.  a  year  for  life,  the 
two  others  pecuniary  legacies ;  all  three  released  the  2d  of  February, 
1746.  The  testator  had  also  made  a  former  will  on  the  20th  of  Decem- 
ber, 1744,  attested  by  three  disinterested  persons,  under  which  the  three 
subscribing  witnesses  to  the  will  of  1746  would  have  had  the  same_  lega- 
cies. A  bill  was  brought  in  Chancery  to  have  the  latter  will  established. 
It  was  contended,  that  notwithstanding  the  will  of  1744,  (which  the  tes- 
tator had  revoked,  as  he  thought,  effectually,  and  might  probably  have 
cancelled,)  it  was  a  benefit  to  the  witnesses,  at  the  time  of  subscribing, 
to  have  a  legacy  under  the  latter  will.  But  the  Lord  Chancellor  was 
clearly  of  opinion,  that  these  were  good  witnesses ;  for,  at  the  death  of 
the  testator,  it  was  indifferent  to  them  which  will  prevailed  ;  and  his  lord- 
ship declared  the  will  of  the  15th  of  May,  1746,  to  be  well  proved,  es- 
tablished it,  and  decreed  the  trust. 

Lord  Ailesbury's  case,  cited  1  Burr.  427.    ||  This  was  before  the  stat.  25  G.  2,  c.  6.|| 

The  question  on  a  special  case  reserved  at  the  assizes,  was,  Whether  a 
person  who,  before  the  time  of  attestation,  had  been  indicted,  tried,  and 
convicted  for  stealing  a  sheep,  and  was  found  guilty  to  the  value  of  ten 
pence,  and  had  judgment  of  whipping,  was  a  sufficient  witness  within  the 
statute  ?  The  whole  Court  of  Common  Pleas  were  clearly  of  opinion, 
after  three  argmnents  at  the  bar,  that  he  was  not  a  competent  witness. 

Pendock  v.  Mackender,  4  Burn's  Eccl.  Law,  93,  II.  28  G.  1 ;  { Willes,  6G5,  S.  G. ; 
2  Wils.  18,  S.  C.{ 

||  Where  a  witness  was  insane,  proof  of  his  handwriting  was  allowed,  for 
he  was  considered  as  dead ;  and  so  also  where  the  witness  was  abroad. 

Carrington  v.  Payne,  5  Ves.  404 ;  Bennet  v.  Taylor,  9  Ves.  381.  || 

pWhen  the  subscribing  witness  is  out  of  the  jurisdiction  of  the  court, 
his  handwriting  may  be  proved  as  if  he  were  dead. 

Engles  v.  Bruinglon,  4  Yeates,  345. g 

When  the  subscribing  witnesses  are  dead,  and  no  proof  of  their  hand- 
writing can  be  obtained,  as  must  frequently  happen  in  the  case  of  old 
wills,  ft  will  be  sufficient  to  prove  the  signature  of  the  testator  alone. 

In  a  case  where  the  handwriting  of  two  subscribing  witnesses  was 
proved,  and  no  account  could  be  given  of  the  third,  the  will  being  above 
thirty  years  old,  and  the  testator  having  been  dead  for  twenty  years,  an 
objection  was  made  to  the  proof  of  the  will ;  but  the  Master  of  the  Rolls 
said,  he  could  not  see  any  distinction  in  this  respect,  between  a  will  and 
a  deed,  except  that  the  former,  not  having  effect  till  the  death,  wants  a 
kind  of  authentication  which  the  other  has  ;  that  is  from  the  nature  of  the 
subject:  but  in  this  case,  he  added,  I  think  the  proof  sufficient;  for,  in 
a  late  case  in  the  Court  of  King's  Bench,  Cunliff  v.  Sefton,  an  inquiry 
of  the  same  kind  was  held  sufficient.  The  Master  of  the  Rolls  therefore 
held,  that  the  execution  of  the  will  had  been  sufficiently  proved. 

Mackenzie  v.  Frazer,  9  Ves.  5  ;  and  sec  James  v.  Parnell,  Turner  &  lluss.  417  ; 
2  East,  183. 

In  the  case  of  Calthorpc  v.  Gough  and  others,  at  the  Rolls,  a  will,  thirty 
years  old,  (reckoned  from  the  date  of  the  will,  not  from  the  testator's  death,) 
was  not  proved  by  witnesses  ;  and  it  was  said  at  the  bar,  that  proof  was  not 


OF  WILLS  AND  TESTAMENT.        527 

(D)  Of  Wills  in  Writing.     ( Proof  of  Wills. ) 

necessary  on  account  of  the  age  of  the  will ;  and  in  support  of  this,  a  case 
of  Mackerv  v.  Newbold  was  cited,  in  which  Sir  Lloyd  Kenyon,  tlien  Mas- 
ter of  the  Rolls,  is  said  to  have  decided,  that  a  will,  above  thirty  years 
old,  should  be  read  without  proof,  although  the  testator  had  died  very 
recently.  That  point,  however,  was  not  decided  in  the  case  of  Calthorpc 
v.  Gough,  because  the  plaintiff',  the  heir  at  law,  admitted  the  will,  and 
claimed  under  it.  In  the  late  case  of  Lord  Ranclifle  v.  Parkynse,  the 
Lord  Chancellor  is  reported  to  have  expressed  an  opinion,  that  a  will, 
thirty  years  old,  if  there  has  been  possession  under  it,  proves  itself  when 
the  attestation  records  the  fact  of  the  signing  of  the  witnesses  in  the 
testator's  presence;  and  if  the  signing  is  not  sufficiently  recorded,  yet 
that  the  fact  of  possession  under  the  will,  and  claiming  and  dealing  with 
the  property  as  if  it  had  passed  under  the  will,  would  be  cogent  evidence 
to  prove  the  duly  signing  by  the  witnesses.  The  general  rule  seems  to 
be,  that  a  will,  thirty  years  old,  unless  there  has  been  possession  under 
it,  ought  to  be  proved  like  any  other  will. 

4  Term  11.  707,  n.  (a) ;  G  Dow.  R.  202.     See  Phillips  on  Evidence,  vol.  i.  503.fl 

[The  attesting  witnesses  may,  upon  examination,  deny  the  facts,  which, 
upon  the  face  of  the  instrument,  they  are  presumed  to  have  attested. 
But  in  this  case,  the  devisee  may  produce  evidence  to  contradict  their 
testimony,  (a) 

Hudson's  case,  Skin.  79 ;  Pike  v.  Badmerino,  2  Stra.  1096 ;  Lowe  v.  Jolliffe, 
1  Black.  R.  365.  W'here,  on  an  ejectment  brought  upon  a  will,  a  woman  had  sworn 
against  her  own  attestation,  Yeates,  J.,  said,  that  she  ought  not  to  have  been  admitted 
to  give  this  evidence.  And  Lord  Mansfield  observed,  that  this  would  not  invalidate 
the  will ;  for  that  there  were  cases  where  one  witness  had  supported  a  will,  by  swear- 
ing that  which  the  other  two  witnesses  attested,  although  those  two  had  denied  that 
they  did  so.  And,  in  the  principal  case,  a  new  trial  was  granted,  the  verdict  having 
been  given  against  the  devisee  apparently  upon  this  ground.  Goodtitle  v.  Clayton, 
4  Burr.  2224.]  ||(«)  If  an  attesting  witness  to  a  will  impeach  its  validity  on  the  ground 
of  fraud,  and  accuse  other  subscribing  witnesses  who  are  dead  of  being  party  to  the 
fraud,  the  party  claiming  under  the  instrument  may  give  evidence  of  their  general 
good  character.     Doe  v.  Stevenson,  3  Esp.  Ca.  284;  4  Ibid.  50  ;  1  Camp.  210.|| 

Witnesses  have  been  examined  to  prove  the  testator's  intent. 

2  Ld.  Kaym.  1320,  Clifl'e  et  al.  v.  Gibbins  et  al.  [So,  MaUabar  v.  Mallabar,  Ca. 
temp.  Talb.  79.] 

The  probate  of  a  will  cannot  be  controverted  at  common  law. 

1  Ld.  llaym.  262,  Sir  Richard  Baine's  case.  N.  B.  Though  neither  the  courts  of 
law  nor  the  courts  of  equity  can  determine  the  validity  of  a  probate  adversarily  ;  yet 
if  it  comes  in  incidentally,  and  the  incident  is  admitted  by  the  parties,  those  courts 
may  determine  it,  and  hold  the  parties  bound  by  the  admission.  Atk.  630,  Sheffield 
v.  The  Duchess  of  Buckingham.  j3The  probate  of  a  will  is  a  judicial  act.  which  can- 
nut  be  called  in  rpiestion  in  a  collateral  suit.  Bailey  v.  Bailey,  8  Ohio,  239  ;  Card  v. 
Grinman,  5  Conn.  164.£[ 

A  recital  of  a  will  in  a  copyhold  admittance  is  evidence  against  any 
but  the  heir. 
1  Ld.  Raym.  735. 

Qu.  If  the  probate  or  register  of  a  will  be  evidence  to  prove  a  pedigree. 
1  Ld.  Raym.  745.     ||  See  Bull.  N.  P.  246. || 

According  to  Holt,  C.  J.,  the  registrar's  book  is  good  evidence  to  prove 
a  will  concerning  lands. 
Ld.  Raym.  631,  St.  Leger  v.  Adams.    ||  See  Bull.  N.  P.  24G.|| 


528      OF  WILLS  AND    TESTAMENTS. 

(D)  Of  Wills  in  Writing.     [Proof  of  Wills. 

Parol  evidence  is  not  admitted  to  contradict  the  words  of  a  will. 

Ld.  Raym.  1261,  Lowfield  v.  Stoneman,  ct  Cas.  temp.  Talb.  240,  Brown  v.  Selwin ; 
/3  Avery  v.  Chappel,  6  Conn.  270;  Spalding  v.  Harrington,  1  Day,  8.0  ||  But  it  is 
admitted  to  explain  a  latent  ambiguity,  Cheney's  case,  5  Hep.  08  ;  Beaumont  v.  Fell, 
2  P.  Wms.  141 ;  Thomas  v.  Thomas,  6  Term  R.  076  ;  Andrews  v.  Dobson,  1  Cox's 
Ca.  425 ;  Careless  v.  Careless,  1  Meriv.  384 ;  Price  v.  Page,  4  Ves.  680 ;  Roberts,  p. 
Ill,  c.  3,  \  4 ;  or  to  rectify  a  mistake  or  misdescription,  Hewson  v.  Reed,  5  Madd. 
455;  Dobson  v.  Waterman,  3  Ves.  jun.  308,  note.|| 

0  The  declarations  of  the  testator,  before  and  at  the  time  of  making  his 
will,  and  afterwards,  if  so  near  as  to  be  a  part  of  the  res  gestce,  are  admis- 
sible to  show  fraud  in  obtaining  the  will.  But  declarations  made  at  a 
considerable  distance  of  time  after  making  the  will,  particularly  if  the 
will  has  been  in  the  testator's  possession  all  the  time,  are  not  admissible. 

Smith  v.  Fenner,  1  Gallis.  170.0 

And  proof  of  a  will  cannot  be  made  against  a  man  by  the  confession 
of  his  own  witness,  without  the  actual  production  of  the  will  itself. 

1  Ld.  Raym.  730,  Pyke  v.  Crouch. 

An  executor  may  be  sued  for  a  legacy  where  he  proves  the  will,  though 
he  does  not  live  in  that  diocese. 

1  Ld.  Raym.  847,  Edgworth  v.  Smalridge. 

A  will  was  made  in  French  and  proved  in  French,  and  under  it  in  the 
same  probate  the  will  was  translated  into  English,  but  it  appeared  to  be 
falsely  translated.  It  was  objected,  that  the  translation  being  part  of  the 
probate,  and  allowed  in  the  spiritual  court,  it  must  bind ;  and  the  applica- 
tion must  be  to  that  court  to  correct  the  mistakes,  which  until  then  must 
be  conclusive.  But  per  his  honour,  nothing  but  the  original  is  part  of 
the  probate ;  neither  hath  the  spiritual  court  power  to  make  any  transla- 
tion :  and  supposing  the  original  will  was  in  Latin,  (as  was  formerly  very 
usual,)  and  there  should  be  a  plain  mistake  in  the  translation  of  the 
Latin  into  English,  surely  the  court  would  determine  according  to  what 
the  translation  ought  to  be.     And  so  it  was  done  in  this  case. 

1  P.  Wms.  526,  L'Fitt  v.  L'Batt. 

)3  In  Pennsylvania,  the  certificate  of  the  register  of  wills,  that  a  will  of 
lands  has  been  duly  proved  and  approved  before  him,  and  a  copy  thereof 
annexed,  is  primd  facie  evidence  of  such  will,  though  a  copy  of  the  pro- 
bate is  not  set  out. 

Logan  v.  Watts,  5  S.  &  R.  212 ;  Dormick  v.  Reichenbach,  10  S.  &  R.  84.  See 
Miller  v.  Carothers,  6  S.  &  R.  223  ;  Coates  v.  Hughes,  3  Binn.  498.0 

||  An  executor  or  the  wife  of  an  executor  taking  no  beneficial  interest 

may  be  a  witness  to  prove  a  will. 

Bettison  v.  Bromley,  12  East,  250 ;  Phipps  v.  Pitcher,  0  Taunt.  220  ;  1  Madd.  144- 
(5  When  the  executor  derives  no  benefit  under  the  will,  he  is  a  competent  witness  to 
establish  it.    Comstock  v.  Hadelymc  Ecclesiastical  Society,  8  Conn.  254.0 

/3lf  either  husband  or  wife  be  a  witness  to  a  will,  containing  a  devise 

or  legacy  to  the  other,  such  legacy  or  devise  is  void,  and  the  witness  is 

competent. 

Jackson  v.  Woods,  1  Johns.  Cas.  63  ;  Jackson  v.  Durland,  2  Johns.  Cas.  314 ; 
Jackson  v.  Denniston,  4  Johns.  311.0 

And  although  he  take  an  interest,  he  may  be  a  witness  for  a  devisee 
to  establish  the  will  as  a  will  of  real  estate ;  for  that  does  not  prove  it  a 
good  will  of  personalty. 

Doe  dem.  Wood  v.  Teage,  5  Barn.  &  C.  335. || 


OF  WILLS  AND  TESTAMENTS.      529 

(E)  Of  Nuncupative  Wills. 

pEach  of  the  witnesses  to  a  will  must  separately  depose  to  all  the  facts 
required  to  complete  the  chain  of  evidence. 

Hock  v.  Hock,  0  S.  &  R.  47.     See  Mullen  v.  M'Kelvy,  5  Watts,  399. 
Parol  evidence  that  deceased  had  made  a  will  in  writing,  and  of  the 
contents  of  such  writing,  insufficient  as  a  will. 
Clark  v.  Morton,  5  Rawle,  235. 

Where  the  witness  testified  that  she  saw  the  testator  sign  the  paper, 
and  acknowledge  it  to  be  his  act  and  deed;  held,  that  this  was  sufficient 
proof  of  its  execution  as  a  will. 

Loy  v.  Kennedy,  1  Watts  &  S.  396. 

The  inhabitants  of  a  corporate  town,  to  whom  property  is  devised  for 
the  support  of  a  school,  are  competent  witnesses  to  support  the  will. 

Corn-well  v.  Isham,  1  Day,  R.  35. 

In  Tennessee,  the  sons  of  a  devisor  are  competent  witnesses  to  a  will, 
provided  none  of  the  lands  of  the  deceased  are  devised  to  them. 
Allen  v.  Allen,  2  Tenn.  172. 

One  who  holds  a  covenant  of  warranty  from  the  testator  is  a  competent 
witness  to  a  will ;  the  heir  or  devisee  are  equally  liable  to  him. 
Thompson  v.  Shocman,  1  Bibb,  401. £/ 

(E)  Of  Nuncupative  Wills. 

"By  stat.  29  Car.  2,  c.  3,  §  19,  for  the  prevention  of  fraudulent  prac- 
tices, it  is  enacted,  1.  That  no  nuncupative  will  shall  be  good  where  the 
estate  thereby  bequeathed  shall  exceed  the  value  of  thirty  pounds,  that  is 
not  proved  by  the  oaths  of  three  witnesses,  at  the  least,  that  were  present 
at  the  making  thereof,  and  bid  by  the  testator  to  bear  witness  that  such 
was  his  will,  or  to  that  effect.  And  by  stat.  4  Ann.  c.  16,  §  14,  it  is  de- 
clared, That  all  such  witnesses  as  are  and  ought  to  be  allowed  to  be  good 
witnesses  upon  trial  at  law,  by  the  laws  and  customs  of  this  realm,  shall 
be  deemed  good  witnesses  to  prove  any  nuncupative  will,  or  any  thing 
relating  thereto. 

"Nor  unless  such  nuncupative  will  were  made  in  the  time  of  the  last 
sickness  of  the  deceased,  and  in  the  house  of  his,  her,  or  their  habitation 
or  dwelling,  or  where  he  or  she  has  been  resident  for  ten  days  or  more 
next  before  the  making  of  such  will,  except  where  such  person  was  sur- 
prised or  taken  sick  being  from  his  own  home,  and  died  before  he  re- 
turned to  the  place  of  his  or  her  dwelling. 

§  20.  "That  after  six  months  passed  after  the  speaking  of  the  pretended 
testamentary  words,  no  testimony  shall  be  received  to  prove  any  will  nun- 
cupative, except  the  said  testimony,  or  the  substance  thereof,  were  com- 
mitted to  writing  within  six  days  after  the  making  of  the  said  will. 

§  21.  "That  no  letters  testamentary,  or  probate  of  any  nuncupative 
will,  shall  pass  the  seal  of  any  court,  till  fourteen  days,  at  the  least,  after 
the  decease  of  the  testator  be  fully  expired,  nor  shall  any  nuncupative 
will  be  at  any  time  received  to  be  proved,  unless  process  have  first  issued 
to  call  in  the  widow,  or  the  next  of  kindred  to  the  deceased,  to  the  end 
they  may  contest  the  same,  if  they  please. 

§  22.  "  That  no  will  in  writing  concerning  any  goods  or  chattels,  or 
personal  estate,  shall  be  repealed ;  nor  shall  any  clause,  devise,  or  bequest 
therein  be  altered  or  changed  by  any  words  or  will  by  word  of  nouth 

Vol.  X.— 67  2  Y 


530      OF  WILLS  AND   TESTAMENTS. 

(E)  Of  Nuncupative  "Wills. 

only,  except  the  same  be  in  the  life  of  the  testator  committed  to  writing, 
and  after  the  writing  thereof  read  to  the  testator,  and  allowed  by  him, 
and  proved  to  be  so  done  by  three  witnesses  at  the  least. 

§  23.  "  Provided  that  any  soldier  in  actual  military  service,  or  any  ma- 
riner or  seaman  (a)  being  at  sea,  may  dispose  of  his  movables,  wages,  and 
personal  estates,  as  before  the  making  of  this  act." 

N.  B.  It  has  been  ruled  in  equity,  that  before  probate,  a  nuncupative  will  is  not 
pleadable  in  any  court  against  an  administrator.  1  Ch.  Cas.  192,  Verhorne  v.  Brewin. 
||  (a)  For  the  regulations  as  to  seamen's  wills,  see  55  G.  3,  c.  60,  and  Burn's  Ecc.  L. 
tit.  Witts,  (8th  edit.) || 

A  being  ill,  desired  B  to  make  her  will,  who  wrote  down  only  names 
and  initial  letters  to  this  effect,  viz. :  To  Tho.  West,  200/.,  to  Jo.  Dev., 
100?.,  to  Reb.  Cro.  50?.,  to  self,  10?.,  and  to  several  other  persons,  in  like 
manner,  to  above  400?. ;  which  being  more  than  her  estate,  B  made  an  al- 
teration in  the  second  column,  by  subtracting  part  of  the  sums  from  some 
of  the  legatees,  as  set  down  in  the  second  column,  and  then  told  A  the 
sense  of  the  proposed  devises :  there  were  two  persons  in  the  room  that  did 
not  hear  any  thing  that  passed  between  A  and  B,  but  only  heard  the  testa- 
trix at  last  pronounce,  that  all  was  well.  B  went  to  a  scrivener  to  have 
the  devises  drawn  out  at  length  and  w  form,  and  before  she  returned  the 
testatrix  died:  the  judge  below  pronounced  for  this  will;  but  upon  appeal 
to  the  delegates,  it  was  reversed ;  and  in  this  case  it  was  agreed,  that  if  the 
will  had  been  written  in  words  at  length,  so  as  they  had  carried  a  sense  and 
meaning  in  themselves,  it  had  been  a  good  will ;  for  that  there  was  one 
witness  that' wrote  it,  and  two  that  heard  the  testatrix  pronounce  that  it  was 
well:  which  would  have  been  intended  to  have  amounted  to  a  second  wit- 
ness, in  regard  it  appeared  on  all  hands,  by  several  witnesses,  that  the  tes- 
tatrix did  then  seriously  dispose  herself  to  make  her  will ;  and  for  that  was 
quoted  the  case  of  one  Pepper,  where  a  person  disposed  herself  to  make 
her  will,  and  dictated  it  to  a  person  who  wrote  it  down ;  and  another,  not 
called  in  as  a  witness,  lay  behind  the  hangings,  out  of  curiosity ;  and  yet 
such  will  was  allowed  to  be  good,  being  proved  by  these  two  witnesses: 
but  they  distinguished  this  case,  because  the  will  was  not  substantive,  but 
was  to  take  its  sense  from  the  interpretation  of  the  witness ;  and  so  there 
%vould  be  innuendo  upon  innuendo,  which  made  purely  a  nuncupative 
will:  and  as  such,  not  being  attested  by  the  number  of  witnesses  appointed 
by  the  statute  of  frauds  and  perjuries,  the  will  and  legacies  were  void. 

1  Abr.  Eq.  Cas.  403.  |3  To  entitle  a  nuncupative  will  to  probate,  the  provisions  of 
ihe  law  must  be  strictly  complied  with.  Case  of  P.  E.  Yarnall's  alleged  will,  4  Rawle, 
40.    See  Prince  v.  Hazelton,  20  Johns.  502.£l 

Doctor  Shallmer,  by  Avill  in  writing,  gave  200?.  to  the  parish  of  St.  Cle- 
ment's Danes,  and  after,  Prew  the  reader  coming  to  pray  with  him,  his 
wife  put  him  in  mind  to  give  200?.  more  towards  the  charges  of  building 
their  church,  at  which,  though  Dr.  Shallmer  was  at  first  disturbed,  yet 
after  he  said  he  would  give  it,  and  bid  Prew  take  notice  of  it :  and  the 
next  day  be  bid  Prew  remember  of  what  he  had  said  to  him  the  day  before, 
and  died  that  day.  Within  three  or  four  days  after,  the  doctor's  wife  puts 
down  a  memorandum  in  writing  of  the  said  devise,  and  so  did  her  maid. 
Prew  died  about  a  month  after,  and  amongst  his  papers  was  found  a  memo- 
randum of  his  own  writing,  dated  three  weeks  after  the  doctor's  death,  of 
what  the  doctor  said  to  him  about  the  200?.,  and  purporting  that  he  had  put 
it  in  writing  the  same  day  it  was  spoken :  but  that  writing  which  was  men- 


OF  WILLS  AND    TESTAMENTS.       531 

(E)  Of  Nuncupative  "Wills. 

.ioned  to  be  made  the  same  day  it  was  spoken  did  not  appear,  and  these 
ihree  memorandums  did  not  expressly  agree.  About  a  year  after,  on  ap- 
plication by  the  parish  to  the  commissioners  of  charitable  uses,  and  pro- 
ducing these  memorandums  and  proof  by  Mrs.  Shallmer  and  her  maid, 
they  decreed  the  200?.  But  on  exceptions  taken  by  the  executors,  the  de- 
cree was  discharged  of  the  200?.,  and  Lord  Chancellor  held  it  not  good, 
because  it  was  not  proved  by  the  oath  of  three  witnesses ;  for  though 
Mrs.  Shallmer  and  her  maid  had  made  proof,  yet  Prew  was  dead ;  and 
the  statute  in  that  branch  requires  not  only  three  to  be  present,  but  that 
the  proof  shall  be  by  the  oath  of  three  witnesses. 
1  Abr.  Eq.  Gas.  404. 

A  daughter  deposits  180?.  in  the  hands  of  her  mother,  (the  defendant,) 
and  afterwards  makes  her  will  in  writing,  and  thereby  clevises  several  le- 
gacies, and  makes  her  mother  executrix,  but  takes  no  manner  of  notice  of 
the  180?.  Afterwards,  by  word  of  mouth,  she  desires  her  mother  to  give 
the  180?.  to  the  plaintiff,  if  she  thought  fit,  and  then  soon  after  died :  the 
mother  proved  the  Will,  and  this  bill  was  brought  against  her,  to  have  the 
180?.  paid.  The  mother,  by  her  answer,  admits  she  had  such  a  sum  in 
her  hands,  that  her  daughter  did  make  such  a  request  to  her,  but  that  she 
left  it  to  her  election,  whether  she  would  give  it  to  the  plaintiff  or  not,  by 
the  very  form  of  the  devise :  and  insisted,  that  she  did  not  think  fit  to  give 
it  to  the  plaintiff.  And  in  this  case  it  was  agreed,  that  this  was  not  good 
as  a  nuncupative  will,  being  above  30?.  and  not  reduced  into  writing  within 
six  days  after  the  speaking,  as  the  statute  requires.  2dly,  That  if  the  de- 
fendant had  insisted  on  the  statute  of  frauds  and  perjuries,  the  court  could 
not  have  relieved  the  plaintiff  as  upon  a  trust ;  but  in  this  case  the  de- 
fendant having  by  answer  confessed  the  trust,  there  was  no  danger  of  per- 
jury from  variety  of  proof,  which  was  the  mischief  the  statute  intended  to 
provide  against ;  and  therefore  the  court  took  it  to  be  in  nature  of  a  trust, 
and  decreed  for  the  plaintiff:  for  the  defendant  expressly  swore,  she  did 
not  think  fit  to  give  it  to  the  plaintiff,  and  that  the  testatrix  had  left  her  at 
liberty.  But  this  decree  was  against  the  opinion  of  several  at  the  bar, 
who  thought  it  too  hard  on  the  election  left  in  the  mother :  but  the  court 
principally  relied  on  the  case  of  Kingsman  and  Kingsman,  where  a  man 
devised  away  an  estate  of  2000?.  per  annum,  and  upwards,  from  his  son 
and  heir  to  a  bargeman ;  and  by  his  will  devised  20?.  per  annum,  to  his 
son,  with  this  clause,  that  if  he  behaved  himself  well,  and  gave  no  trouble 
or  disturbance  concerning  her  will,  that  he  might  make  it  up  80?.  if  he 
thought  fit :  and  the  court  decreed  the  80?.  per  annum  to  the  son.  But 
note,  the  80?.  per  annum,  in  the  case  of  Kingsman  and  Kingsman,  seems 
to  have  been  decreed  purely  upon  the  circumstances  and  hardships  of  the 
case ;  but  in  the  present  case  there  were  no  such  circumstances  or  in- 
gredients of  hardship  on  the  plaintiff:  but  quaere,  for  it  seems  to  be  a 
trust  in  the  hands  of  the  mother. 

1  Abr.  Eq.  Cas.  404  ;  Gil.  Eq.  K.  146,  Jones  v.  Nabbs  ;  ||S.  C.  nom.  Nab  v.  Nab, 
10  Mod.  R.  404.|| 

||  The  dying  person  is  required  by  the  statute  to  bid  the  persons  present 
bear  witness  that  such  is  his  will,  or  to  that  effect ;  and  the  statute,  with 
respect  to  this  as  well  as  its  other  requisitions,  hath  always  been  strictly  con- 
strued. Thus,  in  a  late  case,  where  a  person  in  her  last  sickness  called  her 
children  to  her  bedside,  together  with  another  individual  who  was  in  the 


532       OF  WILLS  AND  TESTAMENTS. 

(F)  The  Nature  and  Effect  of  a  Will  and  of  a  Codicil. 

house,  and  declared  to  them  her  will  as  to  the  disposition  of  her  property, 
without  more  in  the  case,  though  the  credit  of  the  witnesses  was  unshaken, 
the  paper  propounded  as  nuncupative  was  rejected  for  want  of  the  rogatio 
testium,  which  ought  to  be  explicit  and  particular. 

Bennett  v.  Jackson,  2  Phill.  R.  190  ;||  p  Brown  v.  Brown,  2  Murph.  350.0 

j8  A  nuncupative  will  not  made  at  the  habitation  of  the  deceased,  nor 
where  he  had  resided  for  ten  days  next  preceding,  but  authenticated  as  the 
law  requires,  ought  to  be  established  notwithstanding  he  was  very  unwell 
when  he  left  home,  if  afterwards  he  was  taken  more  dangerously  ill,  and 
died  where  the  will  was  made. 

Marks  v.  Bryant,  4  II.  &  M.  91. 

A  man  at  his  own  house,  on  his  death-bed,  and  in  his  proper  senses, 
sent  for  a  neighbour  to  make  his  will,  who  in  his  presence  and  that  of  a 
witness  took  notes  for  that  purpose  ;  the  sick  man  requested  the  writer  to 
make  his  will,  and  directed  each  note  to  be  taken  ;  a  third  witness  was  not 
present  when  the  first  witness  began  to  take  the  notes,  but  was  present 
afterwards,  and  heard  some  of  the  notes  dictated ;  two  of  the  witnesses 
swore  that  the  notes,  or  most  of  them,  were  read  to  the  decedent,  but  were 
not  positive  that  the  whole  were,  nor  did  the  sick  man,  who  was  then  in 
his  senses,  read  them  himself.  After  the  first  witness  had  made  a  draft 
of  the  will  from  the  notes,  the  decedent  was  incapable  of  reading  or  hear- 
ing it  read,  being  at  that  time  delirious.  Held,  that  the  notes  taken  as 
aforesaid  were  a  good  nuncupative  will. 

Mason  v.  Durman,  1  Munf.  456. £f 

(F)  The  Nature  and  Effect  of  a  Will  or  Testament,  and  of  a  Codicil. 

A  will  or  testament  is  of  that  nature,  that  it  differs  much  from  other 
acts  and  deeds  that  men  do  and  execute  in  their  lifetime ;  for  although  it 
be  made,  sealed,  and  published  in  ever  so  solemn  a  manner,  jet  it  has 
no  life  nor  virtue  in  it  until  the  testator's  death ;  for  it  is  a  maxim  in  law, 
omne  testamentum  morte  eonsummatum  est,  et  voluntas  est  ambulatoria 
usque  ad  extrcmum  vitm  exitum:  it  is  therefore  resembled  until  death  to 
the  interlocutory  sentence,  and  after  death  to  the  definitive  sentence  of 
a  judge  ;  and  hence  it  is  said,  sed  legum  servanda  fides,  suprema  voluntas 
quod  mandat  fierique  jubet  parere  necesse  est. 

1  Inst.  112 ;  4  Rep.  01  b,  Forse  and  Hembling's  case.  But  N.  B.  though  it  does 
not  take  effect  till  after  the  testator's  death,  yet  it  is  inchoate,  though  "not  consummate, 
from  the  execution  of  it ;  and  to  many  purposes  in  law  shall  relate  to  the  time  of  the 

.king  of  it.     1  P.  Wms.  97,  Lord  Bindon  v.  Earl  of  Suffolk. 

And  for  this  reason  a  man  may  alter  or  make  void  his  will  at  his  plea- 
sure ;  and  he  may  make  as  many  new  wills  and  testaments  as  he  pleases, 
and  there  is  no  way  to  bar  a  man  of  this  liberty. 

Shop.  Abr.  part  4,  p.  9,  voc.  Test. 

And  the  latter  testament  always  revokes  and  overthrows  the  former ;  but 
otherwise  it  is  of  a  codicil,  for  a  man  may  make  as  many  of  these  as  he 
will,  and  make  no  testament  at  all.  Or,  if  he  makes  a  testament,  he  may 
afterwards  maio  as  many  codicils  as  he  will,  and  one  of  them  will  not 
overthrow  the  other ;  for  in  the  first  case  they  must  be  all  annexed  to  the 
letters  of  administration,  and  the  administrator  must  perform  them ;  and 
in  the  latter  case  they  must  be  all  annexed  to  the  testament,  and  the 
executor  must  take  care  to  perform  them. 

Lit.  1G8,  Swinb.  p.  1,  I  5 ;  Bro.  Test.  20. 


/    OF  WILLS  AND  TESTAMENTS.       533 

(G)  How  Wills  shall  be  construed,  &c. 

A  testament,  therefore,  is  said  to  have  three  degrees.     1st,  An  incep- 
tion, which  is  the  making  of  it.     2dly,  A  progression,  which  is  the  publi- 
cation of  it.     3dly,  A  consummation,  which  is  the  death  of  the  testator. 
Shep.  Abr.  part  4,  p.  9,  voc.  Test. 

In  grants,  therefore,  the  first  is  of  the  greatest  force,  but  in  testaments 

the  last  is  of  the  greatest  force. 

1  Inst  112  b.  But  if  the  latter  will  cannot  be  found,  or  the  contents  of  it  are  unknown, 
it  is  no  revocation  of  the  former.     Show.  Cas.  in  Pari.  146.    [Vide  infra.] 

But,  when  a  testament  is  perfect  by  the  death  of  the  party,  it  as  effec- 
tually gives  and  transfers  estates,  and  alters  the  property  of  lands  and 
goods,  as  acts  executed  by  deeds  in  the  lifetime  of  the  parties ;  for  hereby 
descents  of  lands  are  prevented.  And  a  man  may  make  estates  in  fee- 
simple  or  fee-tail,  for  life  or  years,  of  lands,  tenements,  rents,  rever- 
sions, or  services,  as  effectually  as  by  deed  ;  and  these  estates  also  will  be 
good  without  any  livery  of  seisin  or  attornment ;  and  hereby  also  rents, 
and  power  to  distrain  for  them,  may  be  reserved,  conditions  created  and 
annexed  to  estates  or  things  devised. 
Shep.  Abr.  part  4,  p.  10,  voc.  Test. 

And,  therefore,  they  that  take  by  devises  of  land,  are  said  to  take  in 
the  nature  of  purchasers. 

And  if,  therefore,  a  tenant  in  tail  makes  a  feoffment  to  the  use  of  him- 
self in  fee,  and  after  devises  the  same  land  to  his  wife  in  fee,  and  dies, 
the  son  is  not  remitted  though  the  father  dies  seised,  for  the  devise  pre- 
vents the  descent. 

Dyer,  221..  pi.  16. 

(G)  How  Wills  shall  be  construed.    ||  General  rules  of  Construction :  and  herein, — Ot 
the  admissibility  of  extrinsic  Evidence  to  explain  them.j| 

)3  In  all  cases  the  intention  of  the  testator  is  to  govern,  if  it  be  not  in- 
consistent with  the  policy  of  law. 

Holmes  v.  Williams,  1  Root,  332 ;  Lutz  v.  Lutz,  2  Blackf.  72 ;  Finlay  v.  King's 
Lessee,  3  Peters,  346  ;  Morton  v.  Perry,  1  Mete.  440  ;  Jarvis  v.  Buttrick,  1  Mete.  480 ; 
Richardson  v.  Noyes,  2  Mass.  56 ;  Davis  v.  Hayden,  9  Mass.  514;  Homer  v.  Shelton, 
2  Mete.  194 ;  Lamb  v.  Lamb,  11  Pick.  371 ;  Crocker  v.  Crocker,  11  Pick.  252 ;  Hayden 
v.  Stoughton,  b^lck.  528;  Bowers  v.  Porter,  4  Pick.  198.0 

It  is  to  be  ftbserved,  that  where  the  words  of  a  will  have  a  plain  sense, 
and  no  doubt  is  in  any  matter  within  or  without  the  words,  touching  the 
matter  of  the  devise,  there  the  words  of  the  will  shall  always  be  taken  to 
be  the  intent  of  the  devisor,  and  his  intent  to  be  what  the  words  say. 

2  And.  17,  Lowen  v.  Bedd.     ||  See  7  Ves.  391 ;  9  Ves.  205.  || 

{And  the  words  must  be  understood  in  their  legal  sense,  unless  by  the 
context  or  by  express  words  they  plainly  appear  to  be  intended  otherwise. 
4  Ves.  J.  329  ;  5  Ves.  J.  401,  818  ;  7  Ves.  J.  535. 

Every  word  of  a  will  must  have  a  meaning  imputed  to  it,  if  it  is  capa- 
ble of  a  meaning  without  a  violation  of  the  general  intent,  or  of  any 
other  provision  in  the  will  with  which  it  may  appear  inconsistent. 

4  Ves.  J.  329,  698,  818  ;  5  Ves.  J.  247  ;  6  Ves.  J.  102. 

General  words  in  a  will  may  be  restricted,  to  render  the  whole  will 
consistent. 
6  Ves.  J.  129 ;  7  Ves.  J.  403 ;  10  Ves.  J.  595.} 

2y2 


534       OF  WILLS  AND  TESTAMENTS. 

(G)  How  Wills  shall  be  construed,  &c. 

That  all  the  words  of  a  will  are  to  be  carried  to  answer  the  intent  of 
the  devisor ;  but  this  is  to  be  understood  in  cases  where  the  intent  of  the 
party  may  be  known  by  the  words  that  are  in  the  will. 
2  And.  10,  11,  134;  j3 Gardner  v.  Wagner,  Bald.  R.  459.£/ 

jsA  will  is  to  be  construed  according  to  the  laws  and  usages  of  the 
country  where  the  testator  resided  when  he  made  it,  unless  there  is  some- 
thing in  the  language  which  repels  or  controls  such  conclusion. 
Harrison  v.  Nixon,  9  Peters,  483. £f 

That  if  there  are  inconsistent  and  contradictory  words  in  a  will,  some 
words  must  be  rejected  to  make  it  sense.  Thus,  where  a  testator  gave 
the  interest  of  a  sum  of  6000?.  to  Mary  Comfortle,  his  daughter,  for  her 
life,  and  after  decease  gave  the  money  between  Charles  Comfortle  her 
husband,  and  their  children :  and  in  another  part  of  the  will  he  said, 
"  and  in  case  there  be  no  such  child  or  children,  I  give  it  to  Charles  Com- 
fortle and  such  children."  Lord  Chancellor  rejected  these  latter  words, 
as  they  were  absurd  and  contradictory. 

MS.  Rep.  Boon  v.  Comfortle,  Pas.  24  G.  2,  in  Cane;  [2  Ves.  277,  S.  C.  by  the  name 
of  Boon  v.  Cornforth.J  { "The  rule  with  regard  to  cases  of  this  sort  is,  if  upon  a  gene- 
ral view  of  the  will  I  can  collect  the  general  intention,  or  any  one  particular  object, 
and  there  are  expressions  in  the  will  in  some  degree  militating  with  it,  if  I  plainly  see 
those  expressions  are  inserted  by  mistake,  I  may  reject  them.  But  I  cannot  reject 
any  words,  unless  it  is  perfectly  clear  they  were  inserted  by  mistake  ;  and  if  two  parts 
of  the  will  are  totally  irreconcilable,  I  know  of  no  rule  but  by  taking  the  subsequent 
words  as  an  indication  of  a  subsequent  intention."  Per  Sir  R.  P.  Arden.  5  Ves.  J. 
247,  Sims  v.  Doughty ;  6  Ves.  J.  102;  3  Ves.  J.  320.} 

{Words  may  be  supplied  in  a  will  to  render  a  sentence  complete  and 
intelligible,  in  aid  of  the  apparent  intent  to  be  collected  from  the  whole 
context. 

6  East,  486,  Doe  v.  Micklem. 

A  mistake  in  a  will  cannot  be  corrected,  or  an  omission  supplied,  un- 
less it  is  perfectly  clear,  by  fair  inference  from  the  whole  will,  that  there 
is  such  mistake  or  omission.  Where  there  is  a  clear  mistake,  or  a  clear 
omission,  recourse  is  to  be  had  to  the  general  scope  of  the  will,  and  the 
general  intention  to  be  collected  from  it. 

4  Ves.  J.  45,  Mellish  v.  Mellish ;  Ibid.  57,  Phillips  v.  Chamberlaine ;  3  Ves.  J.  362, 
Clarke  v.  Norris.} 

A  having  a  wife  and  no  children,  made  his  will  and  said, — lest  it  should 
please  God  that  he  should  not  return,  he  gave  and  devised  a  real  and 
personal  estate,  or  to  that  effect.  He  returns,  has  children,  and  dies, 
without  altering  his  will :  the  plaintiff  being  a  legatee,  and  there  being  a 
direction  in  the  will  for  the  sale  of  the  real  estate  to  pay  his  legacy,  Lord 
Chancellor  was  of  opinion  that  the  disposition  was  merely  contingent,  and 
that  no  part  of  the  will  was  to  take  effect  but  on  the  contingency  of  his 
return ;  and  so  avoided  determining  the  principal  question,  how  far  the 
alteration  of  the  testator's  circumstances  would  be  a  presumptive  revoca- 
tion as  to  the  real  and  personal  estate ;  but  as  to  the  personalty,  seemed 
'"O  rely  on  the  case  of  Lug  and  Lug ;  and  as  to  the  real  estate,  he  said 
ihat  the  statute  of  frauds  and  perjuries  made  a  material  difference  be- 
tween that  and  the  personal  estate. 

MS.  Hop.  Parsons  v.  Lenow,  Hil.  22  G.  2,  in  Cane;  [1  Ves.  189,  and  Ambl.  557, 
S.  C.  by  the  name  of  Parsons  v.  Lanoe ;]  ||  1  Wils.  243,  S.  C. ;  and  see  Sinclair  v. 
Hone,  6  Ves.  607;  Johnstone  v.  Johnstone,  1  Phill.  R.  485.  [I 


OF  WILLS  AND  TESTAMENTS.       535 

(G)  How  Wills  shall  be  construed,  &c.  {General  Hales.) 
I A  testator  in  the  West  Indies  made  a  codicil  as  follows :  "In  case  I 
die  before  I  join  my  beloved  wife,  I  leave  to  her  all  my  property,  500/. 
to  my  brother  D  excepted."  He  had  then  taken  leave  of  his  wife,  in- 
tending to  go  to  England  to  solicit  promotion ;  but  that  voyage  being 
prevented  by  accident,  he  returned  to  her.  They  lived  together  there, 
and  returned  together  to  England.  The  testator  afterwards  went  to 
Corsica,  and  from  thence  to  Lisbon,  where  he  died  about  three  years 
after  the  date  of  the  codicil.  The  codicil  was  held  to  be  contingent,  and 
not  to  have  taken  effect  under  these  circumstances,  the  contingency  re- 
ferred to  not  having  happened.  And  though  the  codicil  had  been  proved 
in  the  ecclesiastical  court,  that  was  not  considered  conclusive ;  probate 
of  the  codicil  not  being  refused  except  in  a  plain  case. 
6  Yes.  J.  GOT,  Sinclair  v.  Hone.} 

That  a  will  must  have  a  favourable  interpretation,  and  as  near  to  the 
mind  and  intent  of  the  testator  as  may  be,  and  yet  so  withal  as  his  intent 
may  stand  with  the  rules  of  law,  and  not  be  repugnant  thereunto ;  it  being 
a  rule  or  maxim  of  law,  Quod  ultima  voluntas  testatoris  perimplenda  est, 
secundum  verum  intentionem  ;  and  that,  Sed  legum  servanda  fides,  su- 
prema  voluntas  quod  mandat  fierique  jubet  par  ere  necesse  est.  In  deeds, 
the  rule  of  construction  is,  that  the  intention  must  be  directed  by  the 
words ;  but  in  wills  the  words  must  follow  the  intent  of  the  devisor ;  and 
such  a  construction  is  to  be  made  of  them  as  to  make  use  of  all  the 
words,  and  not  of  part,  and  so  as  they  may  stand  together,  and  have  no 

contrariety  in  them. 

Shep.  Abr.  part  10,  voc.  Testament;  Bridg.  105,  Standish  v.  Short. 

That  such  a  sense  shall  be  made  of  a  devise,  that  it  may  be  for  the 
profit  of  the  devisee,  and  not  to  his  prejudice. 

Shep.  Abr.  part  11,  p.  11,  voc.  Test. 

That  general  and  doubtful  words  in  a  will  shall  not  alter  an  express 
devise  before,  nor  carry  any  thing  contrary  to  the  apparent  intent. 

Shep.  Abr.  part  11,  p.  11,  voc.  Test. ;  ||8  Term  R.  118  ;  6  Ves.  jun.  129.|| 

That  the  clauses  and  sentences  of  a  will  shall  be  severally  transposed 
to  serve  the  meaning  of  it.  And  construction  shall  be  made  of  the  words 
to  satisfy  the  intent,  and  they  shall  be  put  in  such  order  as  that  the  in- 
tent may  be  fulfilled.  . 

Shep.  Abr.  part  11,  p.  11,  voc.  Test.  ||  See  Willes  R.  1 ;  2  Yes.  &  B.  G7  ;  2  Meriv. 
R.  386  ;  9  East  2G7  ;||  |3  Reno's  Executors  v.  Davis,  4  H.  &  M.  283.0 

That  no  sense  may  be  framed  upon  the  words  of  a  will,  wherein  the 
testator's  meaning  cannot  be  found. 

Shep.  Abr.  part  11,  p.  11,  voc.  Test. 

That  to  give  a  thing  to  such  a  person  to  whom  the  law  gives  it,  is  as  if  it 
had  not  been  given ;  and  so  a  devise  of  a  man's  land  to  his  heirs  is  void. 

Styles,  148,  149. 

That  a  construction  of  a  will  must  be  gathered  out  of  the  words  of  the 
will,  and  not  by  any  averment. 

Shop.  Abr.  part  11,  p.  11,  voc.  Test. 

That  though  a  parol  averment  shall  not  be  admitted  to  explain  a  will, 
so  as  to  expound  it  contrary  to  the  import  of  the  words ;  yet  when  the 
words  will  bear  it,  a  parol  averment  may  be  admitted.  As,  for  instance, 
to  ascertain  the  person,  but  in  no  case  to  alter  the  estate. 

1  Freein.  292,  Steede  v.  Berrier ;  5  Rep.  08,  Lord  Cheney's  case ;  [2  P.  Wms.  137  ; 


536       OF  WILLS  AND  TESTAMENTS. 

(G)  How  "Wills  shall  be  construed,  &c.     ( General  Rules.) 

I  Ves.  231 ;  1  Atk.  411 ;  2  Yes.  216 ;  1  P.  Wins.  674;  2  P.  Wms.  142 ;  Ambl.  175 ;  3  Yes. 
jun.  148.  Parol  averments  are  admitted  to  aid  the  exposition  of  a  written  will,  not  only 
where  there  is  an  ambiguity  as  to  the  person,  or  as  to  the  subject  matter  devised,  but 
also  where  words  of  equivocal  import  are  used  expressive  of  the  quantity  of  interest,  or 
extent  of  the  subject  matter  of  the  devise.  Thus,  a  testatrix  by  her  will  gave  the  fol- 
lowing bequests  :  "  I  give  to  M  P  the  sum  of  5001.  stock  in  long  annuities.    I  give  to  M 

II  the  sum  of  5001.  stock  in  long  annuities  ;  I  also  give  unto  Miss  I  B  the  sura  of  2001. 
stock  in  long  annuities,  the  interest  thereof  to  accumulate,  till  she  shall  attain  twenty- 
one,  and  then  the  whole  to  be  transferred  to  her  by  my  executors.  Also,  I  give  unto  Miss 
H D  the  sum  of  1001.  stock  in  long  annuities,  the  interest  thereof  to  accumulate,  until 
she  attains  twenty-one,  and  then  the  whole  to  be  transferred  to  her  by  my  executors: — 
And  all  the  rest  and  residue  of  my  estate  and  effects,  both  real  and  personal,  whatso- 
ever and  wheresoever,  I  give,  devise,  and  bequeath  the  same,  and  all  and  every  part  there- 
of, unto  my  said  two  nephews  M  F  and  T  F,  their  heirs,  and  executors,  administrators, 
and  assigns  for  ever."  It  turned  out  that  the  testatrix  had  only  120?.  a  year  long  an- 
nuities. And  the  question  was,  Whether  the  legatees  should  have  the  respective  sums 
given  to  them  raised  by  sale  of  so  much  of  the  stock  as  would  produce  the  same ;  or 
whether  they  were  entitled  under  the  will  to  annuities  of  the  sums  respectively  given 
them,  and  consequently  to  divide  the  1207.  a  year  between  them,  leaving  nothing  to 
the  residuary  legatees  ?  And  this  depended  upon  the  question,  Whether,  in  this  case, 
the  court  could  let  in  averments  of  the  state  of  the  testatrix's  property  at  the  time  of 
her  decease  ?  Upon  the  first  hearing  of  the  cause,  Lord  Thurlow  was  of  opinion,  that 
parol  evidence  could  not  be  admitted  ;  because,  the  testatrix  having  used  words  so  near 
those  a  man  of  business  would  make  use  of  to  dispose  of  so  much  per  annum,  the  court 
were  bound  to  declare  the  legatees  entitled  to  the  things  as  described,  viz.,  annuities. 
But,  on  a  rehearing  of  the  cause,  his  lordship  changed  his  opinion.  He  said,  he 
should  have  thought  that  had  the  will  stood  clear  of  all  other  criticisms,  although  it 
were  not  an  accurate  description  of  500?.  joint  interest  in  the  annuities,  yet  it  was  a 
sufficient  one  of  500?.  stock  in  the  long  annuities  ;  at  the  same  time  it  was  impossible 
not  to  observe  that  the  expression  "  the  sum  of  500?."  was  going  out  of  the  way.  But 
accurate  phrases  were  not  called  for ;  and  if  the  words  were  found  to  express  the  in- 
tention of  the  testatrix,  that  was  sufficient,  and  if  it  had  stood  by  itself,  it  was  suffi- 
cient to  show  what  the  words  meant,  "  an  annual  sum  of  500?."  The  difficulty  oc- 
curring was  this,  that  she  had  been  speaking  of  a  sum  of  500?.,  which  expression,  if 
standing  alone,  ought  not  to  be  interpreted  by  any  other  context,  but  must  take  its 
whole  complexion  from  the  word  stock:  but,  if  it  stood  with  the  context  to  admit  of 
any  other  construction  upon  it,  he  must  consider  what  the  testatrix  meant  by  the  whole 
of  the  words  "the  sum  of  500?.,  &c,"  and  the  additional  words  "the  interest  thereof 
to  accumulate."  According  to  the  natural  sense  of  the  words  "  sum  of  500?.  given  to 
A  at  twenty-one,  and  the  interest  thereof  to  accumulate,'"  he  must  suppose  the  first  sum 
to  be  the  principal  sum,  and  the  second  the  interest  of  the  principal  sum.  It  had  been 
contended  that  the  word  "stock"  in  the  annuities  could  not  mean  the  annuity; 
because  it  would  extend  to  the  three  per  cents.,  which  were  annuities,  but  there  the 
stock  was  denominative  of  the  capital  sums  ;  otherwise  as  to  the  long  annuities,  they 
were  denominated  so  by  the  annuity  ;  and  the  circumstance  of  their  being  both  annui- 
ties made  it  very  probable,  that  if  a  person  were  to  speak  of  it  as  a  gross  sum,  he 
would  speak  of  the  stock,  and  not  of  the  annuity  merely.  So  far  practice  might  war- 
rant, that  if  the  words  had  ended  with  annuities,  without  speaking  of  interest,  there 
would  have  been  no  necessity  for  evidence  to  have  controlled  them :  but  the  second 
part  of  the  sentence,  "and  the  interest  thereof  to  accumulate,"  raised  a  doubt  whether 
she  meant  a  sum  as  producing  interest,  or  the  stock  itself.  The  term  interest  was  not 
a  jiroper  phrase,  but  this  was  not  a  grosser  inaccuracy  than  those  in  the  rest  of  the 
will :  the  word  transferred  had  been  relied  on  as  a  technical  phrase,  but  it  weighed 
nothing,  because  the  thing  to  be  bequeathed  was  not  the  stock,  but  the  produce  of 
the  stock  together  with  the  stock  itself.  The  interest,  which  was  the  growing  produce 
of  the  legacy  she  meant  to  give,  was  to  be  laid  out  in  order  to  accumulate,  she  must 
have  meant  by  the  word  annuity  something.  There  was  no  doubt  if  the  word  stock 
had  been  left  out,  but  the  meaning  would  be  that  the  sum  of  500?.  was  to  be  disposed 
if  in  long  annuities,  and  to  make  a  produce,  and  that  produce  to  accumulate  until 
the  legatee  should  attain  twenty-one.  This  being  the  doubtful  interpretation  upon 
the  face  of  the  will,  the  question  arose,  Whether  the  state  of  the  testatrix's  fortune 
was  not  applicable  to  the  construction  of  the  will?  It  appeared  by  some  other  parts 
of  the  will,  that  she  was  extremely  unxious  to  make  an  ample  provision  for  the 
family  of  the  Fouereaus  ;  considering  then  the  situation  of  her  fortune,  it  was  porfectly 


OF  WILLS  AND    TESTAMENTS.       537 

(G)  How  Wills  shall  bo  construed,  &c.     {Extrinsic  Evidence.) 

inconsistent  to  say,  that  she  could  mean  to  give  ten  times  more  than  she  was  worth  in 
legacies.  His  lordship's  opinion  therefore  was,  that  the  judgment  must  be  reversed, 
and  that  he  could  let  in  the  evidence  of  the  value  of  the  estate,  not  to  control  the  be- 
quests which  the  testatrix  had  made  in  words  themselves  distinct,  nor  to  control  a  be- 
quest which  she  had  made  of  a  subject  which  she  had  accurately  described  ;  but,  be- 
cause the  words  she  had  used  in  the  description  were,  upon  the  whole  of  the  context, 
uncertain  whether  she  intended  it  as  the  interest  of  the  gross  sum  to  accumulate,  or  500/. 
per  annum.  The  peculiarity  of  this  will  furnished  sufficient  doubt  to  warrant  the  ad- 
mission of  collateral  evidence  to  explain  it,  and,  if  so,  the  statement  of  the  testatrix's 
fortune  was  applicable  to  the  purpose  of  such  an  explanation.  Fonereau  v.  Puintz, 
1  Bro.  Oh.  Rep.  472.] 

{Where  there  is  no  connection  by  grammatical  construction  or  direct 
words  of  reference,  or  by  the  declaration  of  some  common  purpose,  be- 
tween distinct  devises  in  a  will,  the  special  terms  of  one  devise  cannot  be 
drawn  in  aid  of  the  construction  of  another,  although  in  its  general  terms 
and  import  similar,  and  applicable  to  persons  standing  in  the  same  degree 
of  relationship  to  the  testator  ;  and  there  being  no  apparent  reason,  other 
than  the  different  wording  of  the  clauses,  to  presume  that  the  testator 
had  a  different  purpose  in  view. 
9  East,  267,  Right  v.  Compton. 

The  effect  of  a  positive  bequest  is  not  to  be  controlled  by  inference 
and  argument  from  other  parts  of  the  will. 
8  Ves.  J.  42,  Jones  v.  Colbeck.} 

||  In  the  construction  of  wills  free  from  ambiguity,  the  general  rule  is, 
that  evidence  of  the  value  of  the  estate  devised,  or  of  the  amount  of  the 
testator's  property,  will  not  be  admitted  in  order  to  raise  an  argument  in 
favour  of  a  particular  construction.  Whatever  may  be  the  amount,  the 
general  rule  of  construction  must  prevail. 

Doe  d.  Handson  v.  Fyldes,  Cowp.  833  ;  Standen  v.  Standen,  2  Ves.  jun.  593 ; 
3Breckenridge  v.  Duncan,  2  A.  K.  Marsh.  51  ;£f  Richardson  v.  Edmonds,  7  Term  R. 
040  ;  Doe  v.  Dring,  2  Maule  &  S.  455  ;  Bootle  v.  Blundell,  1  Meriv.  210 ;  Jones  v. 
Tucker,  2  Meriv.  537 ;  Attorney-general  v.  Grote,  3  Meriv.  310  ;  Smith  v.  Doe  d. 
Jersey,  2  Bro.  &  B.  473  ;  5  Barn.  &  A.  387.  j3  Parol  evidence  is  inadmissible  to  ex- 
plain, vary,  or  enlarge  the  words  of  a  will,  except  in  the  case  of  a  latent  ambiguity,  or 
to  rebut  a  resulting  trust.     Mann  v.  Mann,  on  Appeal,  14  Johns,  l.j/ 

Where  the  subject  of  the  devise  is  described  by  reference  to  some 
extrinsic  fact,  it  is  not  only  competent,  but  absolutely  necessary,  to  admit 
extrinsic  evidence  for  ascertaining  that  fact,  and  through  that  medium, 
to  ascertain  the  subject  of  the  devise.  This  is  not  done  with  a  view  to 
explain  the  will,  or  to  add  to  its  contents,  but  to  ascertain  wrhat  is  in- 
cluded in  the  description  used  in  the  will. 

Sandford  v.  Raikes,  1  Meriv.  040,  053.  )3  Parol  evidence  of  the  intention  of  the  tes- 
tator cannot  be  admitted  to  vary  the  express  terms  of  the  will.  Avery  v.  Chappel,  G 
Conn.  270 ;  Spalding  v.  Harrington,  1  Day,  8.£/ 

Where  there  is  a  devise  of  an  estate  purchased  by  A,  or  a  farm  in  the 

occupation  of  B,  it  must  be  shown,  by  extrinsic  evidence,  what  estate  it 

was  that  A  purchased,  or  what  farm  was  in  the  occupation  of  B,  before 

it  can  be  shown  what  is  devised. 

Hulme  v.  Heygate,  1  Meriv.  R.  285  ;  1  Meriv.  053  ;  and  see  Lowe  v.  Lord  Ilunt- 
ingtower,  4  Russell,  532,  nota. 

So,  in  all  cases  where  there  is  a  latent  ambiguity  in  a  will,  which  is 
only  raised  by  reference  to  extrinsic  facts,  other  extrinsic  evidence  may 
be  shown  to  do  away  and  explain  the  ambiguity ;  as  where  a  person  had 

Vol.  X.—GS 


538       OF  WILLS  AND  TESTAMENTS. 

(G)  How  Wills  shall  be  construed,  &c.     (Extrinsic  Evidence.) 

two  sons  baptized  John,  and,  conceiving  that  his  elder  son  was  dead,  de- 
vised lands  generally  to  his  son,  and  the  elder  was  in  fact  living,  the 
younger  may,  in  pleading  or  in  evidence,  allege  the  devise  to  him,  and 
produce  witnesses  to  prove  his  father's  intent,  and  that  he  thought  the 
elder  was  dead. 

Cheyney's  ca.,  5  Rep.  68  b ;  and  see  Altham's  case,  8  Rep.  155  ;  Hob.  32;  Jones  v. 
Newman,  1  Black.  R.  GO  ;  Harris  v.  Lincoln,  2  P.  Wins.  136;  Careless  v.  Careless, 
1  Meriv.  384  ;  Doe  v.  Westlake,  4  Barn.  &  A.  57. 

And  so,  where  a  devise  in  a  will  is  to  a  person  designated  by  a  Christian 
and  surname,  without  any  other  description,  and  no  such  person  appears 
to  claim  the  legacy,  or  seems  to  have  been  known  by  the  testator,  parol 
evidence  is  admissible  to  show  that  both  names  are  mistaken. 

Beaumont  v.  Fell,  2  P.  Wms.  140 ;  Doe  dem.  Cook  v.  Danvers,  7  East,  303 ;  and 
for  other  instances  of  latent  ambiguities  where  parol  evidence  has  been  received,  see 
Selwood  v.  Mildmay,  3  Ves.  306  ;  Goodtitle  v.  Southern,  1  Maule  &  S.  299  ;  Doe  v. 
Jersey,  1  Barn.  &  A.  550 ;  Whitbread  v.  May,  2  Bos.  &  Pul.  593  ;  Doe  v.  Oxendon, 
3  Taunt.  147  ;  4  Dow.  65,  contra;  Thomas  v.  Thomas,  6  Term  R.  671 ;  Doe  v.  Jer- 
sey, 3  Barn.  &  Cres.  871 ;  and  Hewson  v.  Reed,  5  Madd.  451. 

But  where  the  will  is  upon  the  face  of  it  ambiguous  and  uncertain,  the 
only  mode  of  arriving  at  its  meaning  is,  by  construing  one  part  of  it  by 
another ;  and  no  external  evidence  of  the  declarations  of  the  testator,  or 
of  other  facts,  is  admissible ;  and  if  the  ambiguity  is  incurable,  the  heir 
at  law  must  take.  As,  for  example,  if  the  devise  is  to  one  of  the  sons 
of  J  S,  who  has  several  sons,  such  an  uncertainty  in  the  description  of 
the  devisee  cannot  be  explained  by  parol  proof. 

3  East,  172  ;  2  Vera.  624  ;  8  Rep.  155  a  ;  Baylis  v.  Attorney-General,  2  Atk.  239. 

And  so,  a  blank  for  the  devisee's  name  cannot  be  supplied  by  parol 
proof. 

But  if  the  surname  only  is  mentioned,  and  a  blank  left  for  the  Christian 
name,  parol  evidence  is  admissible  to  show  who  the  testator  meant.  The 
distinction  between  the  two  cases  being,  that  in  the  former  it  is  uncertain 
whether  the  testator  had  fixed  on  any  object  of  his  bounty ;  while,  in  the 
latter,  it  is  clear  he  had  some  person  in  view ;  and  to  persons  intimate 
with  him,  the  imperfect  description  might  sufficiently  point  him  out. 

Price  v.  Page,  4  Yes.  680 ;  Abbott  v.  Massie,  3  Ves.  148  ;  Andrews  v.  Dobson,  1 
Cox  Ca.  425.  See  Phill.  on  Evid.  1,  540,  (7th  edit.)  and  ante  tit.  Evidence,  (G).  As 
to  particular  rules  of  construction,  and  the  force  of  particular  expressions,  and  the 
creation  of  particular  estates  by  will,  see  tit.  Legacies  and  Devises.\\ 

p  In  the  construction  of  a  will,  one  name  may  be  substituted  for  another, 
when  it  is  manifest  that  not  only  the  name  used  was  not  intended,  but 
that  a  certain  other  name  was  necessarily  meant. 

Connolly  v.  Pardon,  1  Paige,  291 ;  Dent  v.  Pepys,  6  Mad.  350.0 

One  part  of  a  will  shall  be  expounded  by  another :  as  where  a  man 
leaves  an  estate  to  another  and  his  heirs,  and  afterwards  mentions  to 
have  given  him  an  estate-tail ;  heirs  shall  be  taken  to  mean  heirs  of  the 
body,  and  the  devisee  shall  take  only  an  estate-tail. 

2  Freem.  267,  Bamfield  v.  Popham.  |3See  Covenhoven  v.  Shuler,  2  Paige,  122  ; 
Adie  v.  Cornwell,  3  Monr.  279.£f 

||  Effect  ought  to  be  given  to  the  whole  will,  if  possible,  and  the  inten- 
tion should  be  collected  from  all  the  parts  thereof  to  avoid  repugnancy, 


OF  WILLS  AND  TESTAMENTS.       53V 

(G)  How  "Wills  shall  be  construed,  &c.     [Extrinsic  Evidence.) 

and  a  codicil  is  to  be  considered  as  part  of  it.     Such,  indeed,  is  the 

respect  paid  to  intention,  that  a  construction  may  be  made  to  support  it, 

when  plain,  upon  the  whole  will,  even  against  strict  grammatical  rules. 

But  an  express  disposition  cannot  be  controlled  by  inference. 

Leon.  229  ;  2  Bulst.  178  ;  Gittins  v.  Steele,  Swanst.  28  ;  Gray  v.  Minnethorpe,  3 
Ye,,  jun.  105;  11  Yes.  148;  1  Yes.  jun.  269. 

Words  of  desire  are  of  imperative  obligation  if  the  subject  and  object 
be  certain,  unless  there  is  plainly  an  option  or  discretion  intended  to  be 
given.  If  a  testator  uses  technical  phrases,  he  must  be  supposed  to  un- 
derstand them,  unless  by  other  parts  of  the  will  he  manifests  the  con- 
trary. Primd  facie  words  must  be  understood  in  their  legal  sense, 
unless  a  contrary  intent  plainly  appears. 

Roberts  on  Wills,  1,  355.  and  cases  there  cited  :  Morris  v.  Bishop  of  Durham,  10 
Yes.  522;  Phillips  v.  Garth,  3  Bro.  C.  C.  60;  Holloway  v.  Holloway,  5  Yes.  401; 
Window  v.  Tighe,  2  Ball  &  B.  204;  ^Brunson  v.  Hunter's  Adm'r,  2  Hill's  Ch.  490.&' 

The  same  words  in  different  parts  of  a  will  should  be  construed  in  the 
same  sense,  unless  the  general  intention  call  strongly  for  a  different  con- 
struction :  and  sometimes  they  may  have  a  different  force  as  applied  to 
different  subjects. 

2  Chan.  Ca,  169 ;  2  Yes.  016 ;  /3  Elliot  v.  Carter,  12  Pick.  436.£f 

General  words  will  be  controlled  to  render  the  whole  will  consistent : 
but  every  word  ought  to  have  effect,  if  possible,  so  as  it  consist  with  the 
general  intention. 

Strong  v.  Teat,  2  Burr.  912 ;  Doe  v.  Reade,  8  Term  R.  118 ;  and  see  6  Yes.  129  ; 
9  Yes.  205  ;  8  Yes.  295. 

3  Specific  words  have  a  technical  effect  derived  from  usage  and  sanc- 
tioned by  decisions. 

Hawley  v.  Northampton,  8  Mass.  3 ;  Ide  v.  Ide,  5  Mass.  500 ;  Needham  v.  Ide,  5 
Pick.  510.  But  the  technical  force  of  words  will  be  counteracted  by  rational  implica- 
tion.    Vauchamp  v.  Bell,  6  Madd.  643. 

But  when  the  will  is  evidently  drawn  by  an  unskilful  man,  the  terms 
used  shall  receive  their  popular,  not  their  technical  meaning. 
Harper  v.  Wilson,  2  A.  K.  Marsh.  466. 

When  a  word  or  expression  has  no  intelligent  meaning  or  an  absurd 
one,  or  it  is  clearly  repugnant  to  the  clear  intent  of  the  will,  it  may  be 
rejected. 

Bartlett  v.  King,  12  Mass.  537  ;  5  Pick.  510. 

The  testator  is  presumed  to  have  used  words  in  their  ordinary  sense, 
unless  it  appears  from  the  context  that  he  used  them  in  some  other  sense ; 
or  unless  by  a  reference  to  extrinsic  circumstances,  the  use  of  the  words 
in  their  ordinary  sense  would  render  the  provision  of  the  will  insensible 
or  inoperative. 

Mowatt  v.  Carow,  7  Paige,  187.£f 

If  words  admit  of  a  twofold  construction,  the  rule  is  to  adopt  that 
which  may  tend  to  make  good  the  instrument,  and  to  effectuate  rather 
than  to  frustrate :  and  if  words  are  rejected  or  supplied  by  construction, 
it  must  always  be  in  support  of  the  intent. 

Per  Lord  Mansfield,  3  Burr.  1634. 

"And"  must  be  read  as  "or,"  where  such  reading  is  necessary  in  or- 


540       OF  WILLS  AND  TESTAMENTS. 

(H)  How  Wills  may  be  avoided. 

der  to  a  reasonable  construction  of  the  will,  or  where  it  is  necessary  in 
order  to  give  effect  to  all  the  words. 

1  P.  Wins.  434 ;  2  Atk.  643  ;  1  Swanst.  R.  330  ;  6  Ves.  jun.  311 ;  7  Ves.  jun.  459. 

So  "or"  is  sometimes  to  be  read  as  a  copulative,  and  shall  not,  where 
it  comes  at  the  end  of  a  period,  disjoin  the  preceding  sentences  if  the  in- 
tent be  against  it. 

3  Atk.  390 ;  1  Wils.  140 ;  9  East,  366  ;  6  Ves.  jun.  341 ;  12  Ves.  112 ;  j3  Reg  v. 
Enslin,  2  Mass.  554 ;  Carpenter  v.  Heard,  14  Pick.  449  ;  Navison  v.  Taylor,  3  Halst. 
43  ;  Den  v.  Migway,  3  Green,  330  ;  Bouv.  L.  D.  Disjunctive  Term  ;  2  Rop.  Leg.  290 ; 
1  P.  Wins.  433  ;  2  Cox,  213  ;  2  P.  Wms.  383  ;  1  Bing.  500  ;  1  Yeates,  41,  319  :  1  S. 
&  R.  141 ;  1  Wend.  396 ;  6  Toull.  n.  703  and  704 ;  O'Brien  v.  Heeney,  2  Edw.  242 ; 
Mills  v.  Dyer,  5  Simm.  435,£/ 

The  intention  of  the  testator  is  not  to  fail  because  it  cannot  take  effect 
to  the  full  extent,  but  it  is  to  work  as  far  as  it  can. 
3  P.  Wms.  259. 

Neither  the  want  of  merit  in  the  object,  nor  the  want  of  prudence  in 
the  disposition,  nor  any  disproportion  in  the  amount  of  the  property 
given,  will  afford  a  ground  for  controlling  or  not  giving  effect  to  a  will. 

Thellusson  v.  Woodford,  4  Ves.  312,  et  seq.\\ 

j3When  a  testator  has  a  fee  in  a  house,  and  devises  it  to  another  sim- 
ply, it  passes  a  fee  in  such  house. 
Holmes  v.  Williams,  1  Root,  332. 

When  there  is  a  doubt,  vested  rather  than  contingent  remainders  are 
favoured. 

Olney  v.  Hulls,  21  Pick.  311 ;  Dingley  v.  Dingley,  5  Mass.  535 ;  Shattuck  v.  Sted- 
man,  2  Pick.  468 ;  Bowers  v.  Porter,  4  Pick.  198. 

Implied  legacies  are  not  to  be  supported,  unless  the  intent  is  clear. 

Grout  v.  Hopgood,  13  Pick.  159  ;  Hart  v.  Executors  of  Hart,  2  Desaus.  57 ;  Rath- 
bone  v.  Dyckman,  3  Paige,  9. 

General  legacies  are  more  favoured  than  specific  ones. 
22  Pick.  299 ;  Briggs  v.  Hosford,  22>ick.  288. 

The  heir  at  law  is  not  to  be  disinherited,  unless  such  be  clearly  the  in- 
tention of  the  testator. 

Heyden  v.  Stoughton,  5  Pick.  528. 

In  the  construction  of  a  will,  the  general  rule  is  to  consider  the  will,  as 
to  lands,  to  speak  at  the  time  of  its  elate ;  and  as  to  personal  estate  at 
the  time  of  testator's  death. 

Smith  v.  Edrington,  8  Cranch,  66 ;  Allen  v.  Harrison,  3  Call,  289. 

The  words  in  a  will  may  be  transposed  in  order  to  make  a  limitation 
sensible,  or  to  effectuate  the  general  intent  of  the  testator. 
Covenhoven  v.  Shuler,  2  Paige,  122. 

The  strict  grammatical  sense  of  words  in  a  will  may  be  rejected  to 
carry  into  effect  the  intent  of  the  testator. 
Rathbone  v.  Dyckman,  3  Paige,  9. 

"Her"  was  construed  into  "their,"  to  give  effect  to  the  intent  of 
the  testator. 

Keith  v.  Perry,  1  Desaus.  353. g/ 

(II)  How  Wills  may  be  avoided. 
Wills  may  be  avoided  either  by  act  of  the  party  himself,  as  by  revo- 
cation; or  by  legal  sentence  after  the  death  of  the  testator,  as  for  fraud, 
$c.     Therefore  we  will  consider, 


OF  WILLS  AND    TESTAMENTS.      541 

(It)  How  Wills  may  be  avoided.     {Revocation  by  cancelling,  <f*c.) 

1.  What  shall  be  deemed  a  lie  vocal  ion  of  a  Will :  \\And  herein, 

1.  Of  Revocations  by  cancelling,  alterations,  and  subsequent  testamentary  Acts.|| 

By  the  29  Car.  2,  c.  3,  it  is  enacted,  "  That  no  devise  in  writing  of 
lands,  tenements,  or  hereditaments,  or  any  clause  thereof,  shall  be  revo- 
cable, otherwise  than  by  some  other  will  or  codicil  in  writing,  or  other 
writing  declaring  the  same,  or  by  burning,  cancelling,  tearing  or  obliterat- 
ing the  same  by  the  testator  himself,  or  in  his  presence  and  by  his  direc- 
tions and  consent,  but  shall  continue,  &c,  unless  altered  by  some  other 
will  or  codicil  in  writing,  or  other  writing  of  the  devisor,  signed  in  the 
presence  (a)  of  three  or  more  credible  witnesses  declaring  the  same."  And 
by  the  same  act,  "  no  will  in  writing  concerning  personal  estates  shall  be 
repealed,  nor  any  clause  or  bequest  therein  altered  by  words,  or  will  by 
word  of  mouth  only,  except  the  same  be,  in  the  life  of  the  testator,  com- 
mitted to  writing,  and  read  to  and  allowed  by  him,  and  proved  to  be  done 
by  three  witnesses. "(5) 

||(a)  Notwithstanding  these  words,  this  clause  is  construed  conformably  with  the 
fifth  section  as  to  the  execution  of  the  original  will ;  and  it  is  not  held  necessary  that 
the  testator  should  sign,  provided  he  acknowledges  the  will,  in  the  presence  of  the 
witnesses.  See  Roberts  on  Wills,  vol.  2,  p.  1 ;  Dougl.  R.  244,  notis;  Ellis  v.  Smith, 
1  Ves.  jun.  11.     (b)  See  2  Roberts  on  Wills,  105  ;  4  Ves.  jun.  196,  note,  (a).|| 

<3  Where  the  testator  wrote  below  his  will,  "  It  is  my  intention,  at  some 
future  time,  to  alter  the  tenor  of  the  above  will,  or,  rather,  to  make 
another  will ;  therefore  be  it  known  if  I  should  die  before  another  will  is 
made,  I  desire  that  the  foregoing  be  considered  as  revoked,  and  of  no 
effect,"  is  a  present  revocation. 

Brown  v.  Thorndike,  15  Pick.  388.tf 

||  Sir  S  S  duly  made  his  will  on  2d  March,  1810,  occupying  fifteen 
sheets  of  paper.  The  will  was  prepared  from  heads  or  instructions  left 
with  Sir  S  S  for  his  approbation,  after  which  it  was  returned  to  his  solicitor 
to  prepare  the  will,  but  signed  in  pencil  by  the  testator,  that  it  might  operate 
in  case  of  accidents  in  the  mean  time.  It  contained,  amongst  other  be- 
quests,  one  of  2000Z.  to  the  younger  children  of  F  S,  Esq.,  Sir  S's  brother; 
but  this  legacy  being  struck  through  in  the  instructions  was  omitted  in  the 
formal  will,  in  consequence  of  Sir  S's  expectation,  explained  to  the  soli- 
citor, that  the  family  of  Lord  C  would  provide  for  the  younger  children  of 
F  S.  The  will  when  executed  was  delivered  to  the  solicitor,  while  the 
testator  retained  the  instructions  for  reference.  Sir  S  died  11th  July,  1811, 
and  a  probate  of  the  will  only  was  obtained.  The  instructions  were  found 
in  his  secretary,  and  contained  an  obliteration  of  a  legacy  to  Mr.  G,  the 
deceased's  steward,  with  a  mark  in  the  margin  to  refer  to  it,  and  this  en- 
dorsement on  the  outside  :  "  If  any  legacy  includes  Mr.  G  in  this  or  any 
other  will  or  codicil,  I  revoke  it. — S  S,  February,  1811."  The  pencilled 
obliteration  of  the  legacy  of  2000?.  to  F  S's  children  was  crossed  through, 
and  the  deceased  had,  on  the  29th  March,  1811,  signed  every  sheet  of  the 
will  except  the  second,  containing  the  obliteration  of  Mr.  G's  legacy.  On 
a  suit  to  compel  the  executors  to  prove  this  paper  of  instructions  it  was 
proved  that  the  testator,  after  the  execution  of  the  will,  had  reason  to 
believe  that  the  C  family  would  not  provide  for  the  children  as  expected, 
and  that  he  said  to  persons  in  his  confidence  he  supposed  he  must  provide 
for  the  children,  and  expressed  an  intention  of  altering  his  will.  Sir  John 
Nicholl  said  that  the  presumptions  were  strong  against  the  paper,  as  it  had 

2Z 


oil      OF  WILLS  AND  TESTAMENTS. 

(H)  How  Wills  may  be  avoided.     {Revocation  by  cancelling,  &c.) 

been  superseded  by  a  more  formal  instrument :  that  the  alterations  were 
equivocal — they  might  be  intended  to  be  operative,  they  might  be  delibera- 
tive only :  it  was  mere  conjecture  ;  and  the  court  could  not  pronounce  for 
the  alterations  where  the  intention  with  which  they  were  made  was  not 
proved  to  the  extent  required  by  the  rules  of  decision. 

Sitwell  v.  Parker,  Pre.  Court  Doc.  C,  2  Roberts  on  Wills,  107 ;  and  see  Dickenson 
v.  Dickenson,  2  Phil.  R.  173,  where  the  pencil  alterations  were  admitted ;  and  see 
Mence  v.  Mence,  18  Ves.  348.  || 

But,  where  a  man,  by  will  in  writing,  devised  the  residue  of  his  personal 
estate  to  his  wife,  and  after,  she  dying,  he,  by  a  nuncupative  codicil,  be- 
queathed to  J  S  all  that  he  had  given  to  his  wife,  it  was  resolved  good ; 
for,  by  the  death  of  the  wife,  the  devise  of  the  residue  was  totally  void ; 
and  the  codicil  was  no  alteration  of  the  former  will,  but  a  new  will  for 
the  residue. 

2  Raym.  34. 

Revocations  by  the  act  of  the  party  are  either  express,  as  where  the 
devisor  expressly  declares  his  mind,  that  his  will  should  be  revoked ;  or 
implied,  as  where  the  estate  or  thing  devised  is  altered  after  making  of 
the  will. 

2  Abr.  Eq.  Cas.  709,  Sir  Richard  Templeman's  case,  Mich.  4  Anne,  in  C.  B.  N.  B. 
Where  the  spiritual  court  set  aside  a  Avill  as  revoked  by  the  testator,  their  sentence 
extends  only  to  the  personal  estate,  and  does  not  revoke  a  devise  of  the  real  estate. 
3  P.  Wms.  100,  Sir  Samuel  Marwood  v.  Turner.  /3When  a  second  will  contains  an 
express  clause  of  revocation,  the  preceding  will  is  revoked,  though  it  may  not  be 
formally  cancelled.     Boudinot  v.  Bradford,  2  Dall.  208. £j 

If  the  latter  part  of  a  will  is  inconsistent  with  the  former  part  of  it,  it 
supersedes  and  revokes  it.  Per  Reynolds,  C.  B.,  and  Comyns  and 
Thompson,  Barons,  in  Scacc. 

Fitzgibbons,  195,  Attorney-General  v.  Governor  and  Company  of  Chelsea  Water- 
works. 

/3  When  two  wills  are  existing  at  the  same  time,  and  the  testator  destroys 
the  second  will,  without  doing  any  other  act,  the  preceding  will  is,  in 
general,  ipso  facto,  revived. 

Boudinot  v.  Bradford,  2  Dall.  2G8 ;  Lawson  v.  Morrison,  2  Dall.  289  ;  Havard  v. 
Davis,  2  Binn.  400. 

Where  a  testator  having  made  a  will,  afterwards  made  another  will 
containing  a  clause  expressly  revoking  the  former  will ;  and  afterwards 
destroyed  the  second  will,  and  died  leaving  the  first  uncancelled ;  held, 
that  such  clause,  proprio  vigore,  operated  instantaneously  to  effect  a  revo- 
cation. 

James  v.  Marvin,  3  Conn.  570. 

A  resident  of  the  island  of  Jamaica  made  his  will  there,  sufficient  to 
pass  lands  in  Ohio;  afterwards  he  removed  to  Ohio,  where  he  made  a 
nuncupative  will.  Held,  that  such  nuncupative  will  did  not  revoke,  in 
whole  or  in  part,  the  will  made  in  Jamaica. 

M'Cune's  Devisees  v.  House,  8  Ohio,  144.£f 

It  was  agreed  to  be  the  constant  rule  of  this  court,  that  where  a  legacy 
was  given  to  a  child,  who  afterward,  upon  marriage  or  otherwise,  had  the 
like  or  greater  sum,  it  should  be  intended  in  satisfaction  of  the  legacy, 
unless  the  testator  should  declare  his  intent  to  be  otherwise ;  and  it  was 
said,  the  words  of  ratifying  and  confirming  do  not  alter  the  case,  though 


OF  WILLS  AND  TESTAMENTS.       543 

(H)  How  Wills  may  be  avoided.     {Revocation  by  cancelling,  dbe.) 

they  amount  to  a  new  publication,  being  only  words  of  form,  and  de- 
claring nothing  of  the  testator's  intent  in  this  matter. 

2  Freem.  R.  224,  Irod  v.  Hurst.  [For  cases  on  this  point,  see  tit.  Legacies,  D).l 
||  See  Monck  v.  Monck,  1  Ball  &  B.  298,  Drinkwater  v.  Falconer,  3  Yes.  J.  623  :  and 
see  ante  as  to  Publication  and  Republication.\\ 

Thus,  defendant's  testator  by  his  will  gave  his  four  daughters  GOO?, 
apiece,  and  afterward  married  his  eldest  daughter  to  the  plaintiff,  and  gave 
her  700?.  portion  ;  after  that  he  makes  a  codicil,  and  gives  100?.  apiece  to 
his  unmarried  daughters,  and  thereby  ratifies  and  confirms  his  will,  and 
dies.  Plaintiff  preferred  his  bill  for  the  legacy  of  600?.  given  to  his  wife 
by  the  said  will.  And  his  honour  held,  that  the  portion  given  by  the 
testator  in  his  lifetime  should  be  intended  in  satisfaction  of  the  legacy. 

2  Freem.  R.  224,  Irod  v.  Hurst.     ||  See  tit.  Legacies,  Vol.  vi.|| 

J  S  had  four  daughters,  A,  B,  C,  and  D,  and  by  his  will  devised  to  A 
1000?.,  and  by  the  same  will  devised  to  them  1500?.  apiece  for  their  por- 
tions ;  which  last  sums  of  1500?.  were  to  be  raised  out  of  a  real  estate 
devised  by  his  will  for  that  purpose.  A  marries  in  J  S's  lifetime  ;  and 
J  S  gave  her  4000?.  portion.  And  per  Lord  K.  Wright,  this  4000?. 
portion  must  be  taken  to  be  a  satisfaction  of  the  1500?.  given  A  by  the 
will  for  her  portion ;  and  a  revocation  of  the  will  pro  tanto :  but  as  to 
the  1000?.,  that  being  a  general  legacy,  A  must  have  it,  notwithstanding 
the  4000?.,  given  her  for  her  portion. 

Prec.  in  Chan.  183,  Ward  v.  Lant. 

J  S  devised  lands  in  S  to  A,  his  son,  for  ninety-nine  years,  determinable 
upon  three  lives,  and  by  his  will  charges  the  said  lands  with  an  annuity 
of  50?.  per  annum  to  his  daughter  M,  and  afterward  devises  the  same 
lands  for  ninety-nine  years,  determinable  upon  three  other  lives,  reserv- 
ing 50?.  a  year  rent ;  this  is,  during  the  continuance  of  the  lease,  a  re- 
vocation ;  but  it  is  no  revocation  as  to  the  40?.  per  annum  annuity,  there 
being  rent  enough  reserved  to  satisfy  that. 

Yin.  Abr.  tit.  Devise,  (R.  2,)  pi.  16,  Parker  v.  Lamb. 

J  S  by  will  [inter  alia)  devises  to  B,  his  younger  son,  750?.,  and  after- 
wards buys  him  a  cornet  of  horse's  commission,  and  paid  650?.  for  it, 
and  it  was  proved  he  intended  this  650?.  should  be  discounted  out  of  his 
legacy,  and  that  he  would  strike  so  much  out  of  the  will,  as  soon  as  the 
accounts  came  to  London  to  him,  but  died  before  they  came,  without 
altering  his  will.  Decreed  that  the  money  paid  for  his  commission  shall 
go  in  diminution  of  the  legacy,  and  be  taken  in  payment  and  satisfaction 
for  so  much. 

Prec.  in  Chan.  263,  Hoskins  v.  Hoskins. 

A  by  will  gave  his  children  several  legacies,  and  to  his  eldest  son  2000?. 

Afterwards  he  gave  him  400?.  to  go  to  Italy ;  and  being  a  merchant, 

enters  on  the  debtor  side  of  his  book,  My  son  debtor  400?.     Then  by  a 

codicil,  having  taken  an  account  of  the  estate,  and  finding  it  would  not 

answer  all  the  legacies,  he  retrenches  400?.  out  of  each  of  the  younger 

children's  legacies,  without  taking  any  notice  of  the  eldest  son,  or  his 

400?.     His  honour  decreed  the  whole  2000?.  to  the  eldest  son. 

Prec.  in  Chan.  298,  Bird  v.  Hooper.  His  honour  mentioned  the  case  of  Lord 
Guernsey,  who  married  a  daughter  of  Sir  John  Banks,  with  whom  le  had  a  consider- 
able fortune  in  land.  Afterwards  Sir  John  builds  a  house  upon  the  land,  and  being 
a  merchant  makes  an  entry,  Lord  Guernsey  debtor  so  much,  for  building  the  house  ; 


544      OF  WILLS  AND  TESTAMENTS. 

(II)  How  Wills  may  be  avoided.     [Revocation  by  cancelling,  &c.) 

an i  then  makes  his  will,  and  devises  the  residue  of  his  estate  to  his  two  daughters; 
and  yet  it  was  held,  that  this  house  should  fall  into  the  lump  of  the  furtune  given  to 
Lady  Guernsey.     Ibid. 

/3  A  testator  seised  of  two  tracts  of  land,  and  possessed  of  some  personal 
estate,  devised  one  tract  to  his  son,  and  the  other  to  the  family  of  his 
daughter,  and  gave  to  a  bastard  child  of  his  daughter  a  legacy  of  400/„ 
After  he  had  so  made  his  will,  the  testator  sold  the  land  he  had  devised  to 
his  daughter's  family,  and  incurred  debts  on  judgments  under  which  his 
other  tract  was  sold,  leaving  at  his  death  not  more  than  enough  to  pay 
the  legacy  of  400/.  Held,  that  these  circumstances  did  not  amount  to  a 
revocation  of  the  will. 

Wogan  v.  Small,  11  S.  &  E.  141.0 

A  man  makes  his  will  duly  executed  and  attested  according  to  the  statute 
of  frauds  and  perjuries,  and  at  the  same  time,  in  like  manner,  executes  a 
duplicate  thereof.  Some  time  after,  the  testator,  having  a  mind  to  change 
one  of  his  trustees,  orders  his  will  to  be  written  over  again,  without  any 
variation  whatsoever  from  the  first,  save  only  in  the  name  of  that  trustee  ; 
and  when  it  was  so  written  over,  he  executes  it  in  the  presence  of  three 
witnesses,  and  the  three  witnesses  subscribed  their  names,  but  not  in  his 
presence :  after  this  the  testator  cancels  the  duplicate,  by  tearing  off  the 
seal,  and  then  dies.  And  the  question  was,  Whether  this  second  will,  not 
being  good  as  a  will  to  pass  lands,  should  yet  be  a  revocation  of  the  first ; 
and  if  it  should  not,  whether  the  cancelling  the  other  should  be  a  revocation 
thereof  within  the  statute  of  frauds  and  perjuries  ?  And  it  was  decreed, 
that  neither  the  making  of  the  second  nor  the  cancelling  of  the  first  was  a 
revocation  thereof ;  though  in  the  second  there  was  an  express  clause,  that 
he  did  thereby  revoke  all  former  and  other  wills.  Wherein  my  Lord  Chan- 
cellor took  this  distinction,  that  the  second  was  not  intended  barely  a  revo- 
cation of  the  first,  so  as  to  signify  his  intention  of  dying  intestate,  or  with- 
out any  will ;  but  it  was  intended  as  an  effectual  will  to  pass  the  lands  to 
the  persons,  and  in  the  manner  thereby  devised  :  and  therefore  if  it  was  not 
good  as  a  will  to  that  purpose,  it  was  no  revocation  of  the  first,  but  as  it 
was  supposed  to  be  valid  as  a  will  for  passing  the  lands  by  the  second ; 
and  if  a  man  by  his  will  devises  lands  to  A,  and  after  makes  a  second  will, 
and  thereby  devises  the  same  lands  to  B,  if  this  second  will  be  not  good 
as  a  will  to  pass  the  lands  to  B,  it  shall  be  no  revocation  of  the  devise  in 
the  first  to  A ;  for  it  is  plain  A  was  to  lose  only  what  B  was  to  gain  ;  and 
if  B  gains  nothing  by  the  second,  A  shall  lose  nothing  that  was  given  him 
by  the  first.  But,  if  a  man  executes  a  second  will,  which  appears  to  have 
no  other  intention  than  to  revoke  the  first,  and  to  die  intestate,  though  this 
second  be  not  in  all  circumstances  duly  executed  as  a  will  whereby  to  pass 
lands,  yet  it  will  operate  as  a  revocation  of  the  first.  And  as  to  the  cancel- 
ling or  tearing  of  the  first  will,  that  is  no  revocation  of  it  in  this  case,  because 
that  was  no  self-subsisting  independent  act,  but  done  to  accompany,  or  in 
way  of  affirmation  of  the  second ;  it  Avas  done  from  an  opinion,  that  the 
second  had  effectually  revoked  the  first,  and  therefore  he  tears  the  first  as 
of  no  use  ;  but  the  first  was  not  effectually  revoked  by  the  second ;  and 
the  act  of  tearing  the  first  will  not  destroy  it  neither ;  for  though  a  man  may, 
by  the  statute  of  frauds,  as  effectually  destroy  his  will,  by  tearing  or  can- 
celling it,  as  by  making  a  second ;  yet  if  he  does  make  a  second,  and  in- 
tends that  as  a  revocation  of  the  first,  if  it  be  insufficient  for  that  purpose,  as 
n  the  principal  case,  the  tearing  or  cancelling  being  only  in  consequence 


OF  WILLS  AND  TESTAMENTS.       545 

(II)  How  Wills  may  be  avoided.     (Revocation  by  cancelling,  dr.) 

of  liis  opinion,  that  lie  made  a  good  second  will,  it  shall  not  destroy  the 
first ;  but  it  ought  to  be  set  up  again  in  equity. 

1  Abr.  Eq.  Cas.  407.  fiQu.  Whether  a  will  devising  real  estate  attested  by  three 
witnesses,  ean  be  revoked,  by  a  subsequent  will  attested  by  two  witnesses  only?  Bel- 
den  v.  Carter,  4  Day,  66.     But  see  Witter  v.  Mott,  2  Conn.  67. (j 

But  if  a  man  cancels  or  revokes  either  the  duplicate  or  original  will, 
there  is  an  effectual  avoiding  of  both,  they  being  both  but  one  will,  and 
therefore  must  stand  or  fall  together. 

2  ATern.  742,  Onions  v.  Tyrer;  ||1  P.  Wms.  345;  Prec.  in  Chan.  459  ;j|  j3  Betts  v. 
Jackson,  6  Wend.  173. £/ 

P  Testator  having  made  a  will  devising  real  estate,  duly  attested,  after- 
wards wrote  on  the  back  of  it,  and  subscribed  the  following  words: 
"  This  will  is  invalid,  March  9th,  1813,  as  L  S  has  agreed  that  my  wife 
shall  claim  no  right  of  dower,  and  bound  himself  accordinirlv."  Held, 
that  this  declaration  was  an  express  revocation  of  the  will. 

Witter  v.  Mott,  2  Conn.  67. £/ 

[A  testator,  (who  had  for  two  months  together  frequently  declared  him- 
self discontented  with  his  will,)  being  one  day  in  bed  near  the  fire,  ordered 
M  W,  who  attended  him,  to  fetch  his  will,  which  she  did,  and  delivered  it 
to  him.  it  being  then  whole,  only  somewhat  erased.  He  opened  it,  looked 
at  it,  then  gave  it  something  of  a  rip  with  his  hands,  and  so  tore  it  as 
almost  to  tear  a  bit  off,  then  rumpled  it  together,  and  threw  it  on  the  fire, 
but  it  fell  off.  It  must  soon  have  been  burnt,  had  not  M  W  taken  it  up, 
which  she  did,  and  put  it  in  her  pocket.  The  testator  did  not  see  her  take 
it  up,  but  seemed  to  have  some  suspicion  of  it,  as  he  asked  her  what  she 
was  at,  to  which  she  made  little  or  no  answer.  The  testator  at  several 
times  afterwards  said,  that  was  not  and  should  not  be  his  will,  and  bid  her 
destroy  it.  She  said  at  first  "  So  I  will,  when  you  have  made  another;" 
but  afterwards,  upon  his  repeated  inquiries,  she  told  him  that  she  had 
destroyed  it,  though  in  fact  it  was  never  destroyed ;  that  she  believed  he 
imagined  it  was  destroyed.  She  asked  him  who  his  estate  would  go  to 
when  the  will  was  burnt  ?  he  answered,  to  his  sister  and  her  children.  He 
afterwards  told  a  person  that  he  had  destroyed  his  will,  and  should  make 
no  other  until  he  had  seen  his  brother  J  M,  and  desired  the  person  to  tell 
his  brother  so,  and  that  he  wanted  to  see  him.  He  afterwards  wrote  to 
his  brother,  saying,  "  I  have  destroyed  my  will  which  I  made ;  for  upon 
serious  consideration,  I  was  not  easy  in  my  mind  about  that  will ;"  and 
desired  him  to  come  down,  saying,  "  If  I  die  intestate,  it  will  cause  uneasi- 
ness." The  testator,  however,  died  without  making  another  will.  The 
jury,  with  the  concurrence  of  the  judge,  thought  this  a  sufficient  revoca- 
tion of  the  will ;  and  so  it  was  held  to  be  by  Lord  Chief  Justice  De  Grey 
and  the  whole  court,  on  a  motion  for  a  new  trial,  and  the  rule  discharged : 
the  Chief  Justice  observing,  that  this  case  fell  within  two  of  the  specific 
acts  described  by  the  statute  of  frauds  ;  it  was  both  a  burning  and  a  tear- 
ing :  and  that  throwing  it  on  the  fire,  with  an  intent  to  burn,  though  it  was 
only  very  slightly  singed  and  fell  off,  was  sufficient  within  the  statute. 

Bibb  v.  Thomas,  2  Black.  R.  1043.]  /3As  to  what  will  amount  to  a  cancellatioa,  see 
Betts  v.  Jackson.  0  Wend.  173  ;  Jackson  v.  Betts,  9  Wend.  20.S  ;  Idley  v.  Brown, 
11  Wend.  227  ;  Pan  v.  Brown,  4  Cowen,  483;  Jackson  v.  Halloway,  7  Johns.  394; 
Avery  v.  Pixley,  4  Mass.  4GO.0 

p  When  a  testator  intends  to  revoke  a  will,  sends  for  it,  and  the  devisee 
Vol.  X.— 69  2  z  2 


546       OF  WILLS  AND  TESTAMENTS. 

(H)  How  Wills  may  be  avoided.     {Revocation  by  cancelling,  &c-) 
prevents  him,  the  will  is  not  thereby  revoked,  but  the  devisee  holds  as 
trustee  for  the  heirs. 

Gains  v.  Gains,  2  Marsh.  190. 

Directing  a  will  to  be  burned  by  the.  person  who  has  possession  of  it, 
and  who  refuses  to  do  so,  is  not  a  revocation. 

Giles's  Heirs  v.  Gills's  Executors,  Conf.  Rep.  174. 

The  destruction  of  a  will,  even  by  the  testator  himself,  does  not  amount 
to  a  revocation,  if  the  testator  had  not  capacity.  Though  the  instrument 
is  not  in  being,  if  its  contents  are  known,  it  can  be  proved. 

Idley  v.  Bowen,  11  Wend.  227  ;  Jackson  v.  Halloway,  7  Johns.  394. 0 

A  man  makes  his  will  in  writing,  and  thereby  devises  all  his  real  and 
personal  estate  to  his  wife,  her  heirs  and  executors,  in  trust  to  pay  his  debts 
and  legacies ;  and  then  devises  several  legacies  to  his  children,  and  other 
persons,  and  concludes,  "In  witness  whereof  I  have  to  this  my  last  will 
and  testament,  containing  nine  sheets  of  paper,  and  to  a  duplicate  thereof, 
to  be  left  in  the  hands  of  such  a  one,  set  my  seal  to  every  sheet  thereof, 
and  to  the  last  of  the  said  sheets  my  hand  and  seal,  in  the  presence  of  three 
witnesses,  who  all  subscribed  their  names  in  due  form  of  law."  ^  After- 
wards the  testator  being  minded  to  add  other  trustees  to  his  wife,  and 
make  some  alterations  in  his  will,  sends  for  a  scrivener,  and  gave  directions 
to  prepare  a  draught  of  instructions  for  another  will,  which  the  scrivener 
does  accordingly,  and  the  testator  read  it  over  and  approved  of  it  very 
well,  and  sets  his  hand  to  it ;  and  being  at  a  tavern,  thinking  that  he  had 
now  made  a  new  will,  he  pulls  out  of  his  pocket  the  first  will  and  tears  off 
the  seals  from  the  first  eight  sheets,  which  the  scrivener  seeing,  asked  him 
what  he  was  a-doing  ?     "  Why,"  says  he,  "  I  am  cancelling  my  first  will." 
"Pray,"  says  the  scrivener,  "hold  your  hand,  the  other  will  is  not  per- 
fected; it  will  not  pass  your  real  estate  for  want  of  being  executed  pursu- 
ant to  the  statute  of  frauds  and  perjuries."     "  I  am  sorry  for  that,"  says 
he,  and  immediately  desisted  from  tearing  off  any  more  of  the  seals  ;  and 
in  some  short  time  after  dies,  without  having  done  any  thing  further  to  per- 
fect the  second  will  or  cancel  the  first.     After  his  death,  on  application  to 
the  spiritual  court  by  the  wife,  who  was  made  executrix  of  his  last  will, 
they  sentenced  it  a  good  will  as  to  the  personal  estate,  and  admitted  her  to 
prove  it :  ami  on  a  bill  brought  by  the  legatees  against  the  wife,  and  other 
trustees,  to  have  a  specific  performance  of  the  trust  in  the  first  will,  and 
that  the  estate  might  be  sold,  pursuant  to  the  directions  of  that  will ;  it  was 
insisted  upon,  that  the  first  will  was  revoked  either  by  making  the  second, 
or  by  tearing  off  the  seals  from  the  first ;  but  Lord  Chancellor  held,  that 
the  subsequent  will  could  be  no  revocation  as  to  the  real  estate,  not  being 
executed  according  to  the  statute  of  frauds  and  perjuries ;  and  that  as  to 
the  tearing  off  the  seals  from  the  first  eight  sheets,  that  not  being  done 
animo  canceUaiuli,  was  no  revocation  ;  and  that  the  seal  remaining  Avhole 
to  the  last  sheet  was  sufficient,  and  in  strictness  it  was  not  necessary  that 
all  the  sheets  should  be  sealed :  but  because  the  spiritual  court  had  sen- 
tenced the  second  a  good  will  of  the  personal  estate,  his  lordship  held  it  a 
<>-ood  will  for  the  whole  personal  estate,  and  that  such  legatees  of  personal- 
ties in  the  first  will,  as  arc  left  out  in  the  second,  must  lose  their  legacies  ; 
but  for  those  that  had  legacies  by  the  first  "will  chargeable  on  the  real  estate, 
if  the  same  legacies  were  devised  to  them  by  the  second  will,  that  they 
should  still  continue  chargeable  on  the  real  estate  ;  provided  such  legacies 


OF  WILLS  AND  TESTAMENTS.       547 

(II)  How  Wills  may  bo  avoided.     (Revocation,  by  cancelling,  dr.) 

were  not  increased  or  enlarged  by  the  second  will :  for  though  the  second 
will  was  not  sufficient  in  itself  to  charge  the  real  estate,  yet  since  the 
real  estate  remained  well  devised  by  the  first  will,  they  should  be  still 
secured  by  that  real  estate ;  for  they  were  not  devised  out  of  land  like  a 
rent,  but  only  secured  by  land,  which  before  was  well  devised ;  but  for 
new  absolute  personal  legacies  devised  by  the  last  will,  they  should  b  • 
chargeable  only  upon  the  personal  estate,  and  should  have  the  preference 
to  be  first  paid  out  of  the  personal  estate  before  the  other  legacies  in  the 
first  will,  charged  upon  the  real  estate,  because  they  had  several  funds, 
out  of  which  they  were  to  be  paid ;  the  personal  legacies  in  the  last  will 
out  of  the  personal  estate,  which  was  well  devised  by  that  will ;  and  the 
legacies  charged  upon,  or  secured  upon  the  real  estate,  which  was  de- 
vised, by  the  first  will,  out  of  the  real  estate. 

1  Abr.  Eq.  Cas.  409  ;  Hyde  v.  Hyde,  3  Chan.  R.  155,  S.  C,  and  decreed  and  adds, 
that  all  agreed  that  the  second  will,  though  not  sealed  and  subscribed  as  the  statute 
of  frauds  directs ;  yet  it  is  good  for  the  personal  estate,  it  being  casus  omissus  out  of 
the  statute,  and  then  it  was  good  at  common  law.     Ibid.  161. 

0A  cancellation  is  primd  facie  evidence  of  a  revocation,  but  if  made 
with  intent  of  executing  a  new  will,  and  that  intent  fails,  the  cancellation 
is  conditional  and  shall  have  no  effect. 

Bethell  v.  Moore,  2  Do  v.  &  Bat.  3U.£f 

||  So  also  where  the  testator,  being  angry  with  one  of  the  devisees  named 
in  his  will,  began  to  tear  it  with  the  intention  of  destroying  it,  and,  hav- 
ing torn  it  into  four  pieces,  was  prevented  from  proceeding  further,  partly 
by  the  efforts  of  a  bystander,  who  seized  his  arms,  and  partly  by  the  en- 
treaties of  the  devisee.  Upon  this  he  became  calm,  and  having  put  by 
the  several  pieces,  he  expressed  his  satisfaction  that  no  material  part  of 
the  will  had  been  injured,  and  that  it  was  no  worse.  The  learned  judge 
left  it  to  the  jury  to  say  whether  he  had  completely  finished  what  he  in- 
tended for  the  destruction  of  the  will,  and  the  jury  having  found  that  he 
had  not,  the  court  considered  that  they  had  drawn  the  right  conclusion 
from  the  facts,  and  supported  the  will. 

Doe  dem.  Perkes  v.  Perkes,  3  Barn.  &  Aid.  489.||  |3See  Burns  v.  Burns,  4  S.  &  K. 
297  ;  Boudinot  v.  Bradford,  2  Dall.  266  ;  Lawson  v.  Morrison,  2  DalL  267,  note.0 

[On  a  special  verdict  in  ejectment,  the  jury  found,  that  A,  seised  in  fee 
of  the  lands  in  question,  made  his  will,  and  thereby  devised  them  in  man- 
ner therein  stated,  and  after  making  that  testament,  viz.,  &c,  he  made 
aliud  testamentwm  in  scriptis,  but  what  were  the  contents  thereof,  or  its 
purport,  or  effect,  they  did  not  know.  The  question  was,  Whether  the 
latter  will,  so  found,  was  a  revocation  in  law  of  the  devise  of  the  lands  in 
the  former  ?  And  the  court  declared  their  opinion,  that  they  were  not 
satisfied  the  second  will  did  revoke  the  former ;  because  it  was  not  found 
that  any  lands  were  devised  by  the  second  will,  so  that  it  might  or  might 
not  be  consistent  with  the  former  ;  and  when  the  matter  stood  indifferent, 
the  court  would  not  suppose  a  revocation  of  a  will  solemnly  made.  And 
this  judgment  was  affirmed  on  appeal  to  the  House  of  Lords. 

Seymour  et  al.  v.  Nosworthy  in  Scac. ;  Hard.  374,  S.  C. ;  Show.  Pari.  Ca.  146,  S. 
C.  by  the  name  of  llitehins  v.  Basset,  in  Banco  Regis,  3  Mod.  R.  203  ;  Comb.  90  :  2 
Salk.  592  ;  1  Show.  537. 

On  a  special  verdict  in  ejectment,  the  jury  found,  that  L,  seised  in  fee 
of  chambers,  and  having  a  considerable  personal  property,  in  1748,  by 
will,  duly  attested  to  pass  real  property,  gave  and  devised  all  his  real  and 


548       OF  WILLS  AND  TESTAMENTS. 

(II)  How  Wills  may  be  avoided.     {Revocation  by  cancelling,  &c.) 

personal  estate,  of  what  nature  or  kind  soever,  or  wheresoever,  unto  bia 
dear  friend  H  :  that,  afterwards,  in  the  year  1766,  L  made  and  published 
another  will  and  testament  in  writing,  in  the  presence  of  three  subscribing 
witnesses,  who  duly  attested  the  same';  that  the  disposition  made  by  L  in 
the  will  of  1756  was  different  from  the  disposition  in  the  will  of  the  year 
1748,  but  in  what  particulars  was  unknown  to  the  jurors  ;   but  they  did 
not  find  that  the  testator  cancelled  his  tvill  of  the  year  1756,  or  that  the 
defendant  destroyed  the  same;  but  what  ivas  become  of  the  said  will,  the 
jurors  said  they  were  altogether  ignorant.     The  question  was,  Whether 
the  latter  will,  being  expressly  found  by  the  jury  to  be  different  from  the 
former,  was  a  revocation  of  it  ?     Those  who  argued,  that  the  last  will, 
thus  found,  revoked  the  first,  attempted  to  distinguish  this  ease  from  that 
of  Hitchins  and  Basset,  upon  the  grounds  that,  in  this  case,  the  jury  were 
so  far  from  being  totally  ignorant  of  the  contents  of  the  second  will,  that 
they  were  enabled  to  find,  and  did  find,  that  the  disposition  in  1756  was 
different  from  that  in  1748  ;  and.they  contended,  that  the  fact  that  it  con- 
cerned lands  was  sufficiently  found  by  the  mode  of  devising,  and  that  it 
extended  to  the  estate  in  question,  was  inferred  from  the  testator's  having 
no  other  estate  which   required  the  solemnities  of  the  statute  of  frauds. 
But,  on  the  other  side,  it  was  contended,  that,  before  a  latter  will  could 
be  determined  to  revoke  a  former,  it  must  be  shown  to  contain  an  incon- 
sistent disposition,  or  circumstances  must  be  made  out  from  whence  that 
might  be  presumed,  as  spoliation,  or  the  like  ;  but  here  the  jury  expressly 
found,  that   they  did  not  know  in  what  the  difference  consisted,  though 
they  found  it  different ;  that  nothing  could  be  presumed  upon  a  special 
verdict ;  nothing  specifically  appeared  touching  the  will  in  1756 ;  and  the 
arguments  for  its  being  a  revocation  were  fallacious ;  for  it  did  not  ap- 
pear what  were  the  contents  thereof,  et  denon  apparentibus  et  non  exist- 
entibus  eadem  est  ratio  :  that  presumptions  were  always  in  the  affirmative, 
there  could  not  be  any  negative  presumption  ;  that  no  presumption  could 
arise  from  a  diversity,  unless  that  diversity  were  shown  and  found ;  that 
therefore  a  second  will  in  the  dark,  which  neither  the  jury  nor  the  court 
ever  saw,  and  were  wholly  ignorant  of  the  contents  of,  ought  not  to  be 
set  up ;  for,  if  it  were,  an  heir  might  avail  himself,  by  destroying  the 
second  will,  to  defeat  both  wills.     And  upon  these  grounds  it  was  ad- 
judged, in  the  Court  of  King's  Bench,  on  a  writ  of  error  from  the  Court 
of  Common  Pleas,  that  the  latter  will,  so  found,  was  not  a  revocation, 
and  the  judgment  below  reversed;  and  that  reversal  was  afterwards  af- 
firmed in  the  House  of  Lords. 

Goodright  v.  Harwood,  3  Wills.  497  ;  2  Black.  R.  937  ;  Cowp.  87  ;  7  Bro.  P.  0. 


44 


„And  where  the  testator  devised  his  personal  estate  to  A,  and  his  real 
estate  to  B,  and  A  died,  and  the  testator  afterwards  acquired  other  real 
property  by  devise  and  purchase,  and  then  made  a  second  will,  disposing 
by  name  of  his  after-acquired  testamentary  property  to  C,  and  then  added, 
"  As  to  the  rest  of  my  real  and  personal  estate,  I  intend  to  dispose  of  it 
by  a  codicil  thereafter  to  be  made  to  this  my  will,"— it  was  held  that  this 
was  no  revocation  of  the  first  will :  for  even  supposing  the  future  disposi- 
tion to  be  intended  to  be  inconsistent,  (which  did  not  appear,)  a  mere 
intention  to  revoke  did  not  amount  to  a  revocation. 

Thomas  v.  Evans,  2  East,  488. 

The  revocation  by  a  codicil  must  either  be  by  express  words,  or  by  in- 
consistency of  devise.     Where  a  testator  devised  estates  for  life  without 


OF  WILLS  AND  TESTAMENTS.       549 

(II)  How  Wills  may  be  avoided.     (Revocation  by  cancelling,  dc.) 

impeachment  of  waste,  and  then  by  a  codicil  directed  the  trustees  to  let 
until  the  tenant  for  life  married;  the  leases  to  be  under  certain  restric- 
tions, one  of  which  was  that  they  should  not  be  unimpeachable  of  waste, 
the  codicil  was  held  not  inconsistent,  and  therefore  no  revocation. 

Lushington  v.  Boldero,  Coop.  C.  R.  21G ;  and  see  Hicks  v.  Hearle,  1  Youuge  &  J. 
47U ;  Duffield  v.  Elwes,  3  Barn.  &  C.  705. 

Where  a  will  and  codicil  gave  a  power  to  sell  to  certain  persons  at  a 
fixed  price,  and  a  subsequent  codicil  devised  the  premises  to  trustees  to 
be  sold  for  payment  of  debts,  and  subject  thereto  on  the  trusts  of  the  will, 
the  codicil  was  held  a  revocation. 
Bridger  v.  Rice,  1  Jac.  &  Walk.  74. 

Where  an  alteration  was  made  in  a  will  by  a  codicil,  and  also  by  an 
interlineation,  and  the  testator  cancelled  the  codicil,  it  was  held  that  this 
set  up  the  will  in  its  original  state,  although  the  interlineation  in  the  will 
was  left  standing. 

Utterson  v.  Utterson,  3  Ves.  &  Bea.  122.         * 

WThere  the  testator  bequeathed  as  follows  :  "As  to  all  that  my  lease- 
hold house  in  L,  and  all  my  household  goods  and  furniture  there,  and  at 
S,  and  as  to  all  my  plate,  linen,  china,  pictures,  live  and  dead  stock,  and 
all  the  residue  of  my  goods,  chattels,  and  personal  estate,  I  give  and  be- 
queath the  same  to  A,"  and  by  a  codicil  he  revoked  the  bequest  "of  the 
residue,"  and  gave  "  the  residue  of  his  said  personal  estate"  to  B  ;  it  was 
held,  that  the  gift  of  the  general  residue  only,  and  not  of  the  articles 
enumerated,  was  revoked. 

Clarke  v.  Butler,  1  Meriv.  R.  304 ;  and  see  Lord  Carrington  v.  Payne,  5  Ves.  404 ; 
Holder  v.  Howel,  8  Ves.  97  ;  Gallini  v.  Noble,  3  Meriv.  091 ;  Hotham  v.  Sutton, 
15  Ves.  319. 

Where  the  codicil  revoked  legacies  in  the  will  on  the  supposition  that 
the  legatees  were  dead,  on  its  being  proved  that  they  were  living,  it  was 
held  that  the  revocation  did  not  take  effect,  and  they  were  entitled  to 
take. 

Campbell  v.  French,  3  Ves.  jun.  321.  As  to  effect  of  a  mistake  on  a  testamentary 
disposition,  see  Rob.  on  Wills,  2,  41  ;  and  see  the  instance  of  such  mistake  or  mis- 
representation mentioned  by  Cicero  de  Oratore,  lib.  1,  c.  38  :  "  Quae  potuit  igitur  esse 
causa  major,  quam  illius  militia?  de  cujus  morte  cum  domum  falsus  ab  exercitu  nun- 
tius  venisset,  et  pater  ejus,  re  credita,  testamentum  mutasset ;  et  quem  ei  visum  esset, 
fecisset  haeredem,  essetque  ipse  mortuus — res  delata  est  ad  centumviros  cum  miles 
domum  revenisset  egissetque  lege  in  haereditatem  paternam." 

{ One  devised  his  personal  estate  to  A  and  his  real  estate  to  B.  After 
A's  death,  the  devisor,  having  acquired  other  real  property,  some  by  de- 
vise, and  some  by  purchase,  made  a  second  will,  disposing  by  name  of 
his  after-acquired  devised  estate  to  C,  and  then  added,  "As  to  the  rest 
of  my  real  and  personal  estate,  I  intend  to  dispose  of  it  by  a  codicil  here- 
after to  be  made  to  this  my  will."  This  is  no  revocation  of  the  first  will, 
even  if  it  be  considered  that  he  meant  to  include  the  property  thereby 
devised  ;  because  it  is  a  mere  declaration  of  an  intent  to  dispose  of  it  in 
future  ;  and  non  constat  that  such  disposition  would  be  inconsistent  with 
the  first  will.  But  it  does  not  appear  that  he  meant  to  include  the  same 
property  in  the  residuary  clause ;  for  he  had  other  property,  both  real 
and  personal,  undisposed  of  by  either  of  the  instruments ;  namely,  his 
personal  property  which  had  lapsed  by  the  death  of  A,  and  his  real  pro- 


550      OF  WILLS  AND  TESTAMENTS. 

(II)  How  Wills  may  be  avoided.     [Revocation  by  cancelling,  &c.) 

perty  purchased  by  him  after  the  date  of  his  first  will,  which  alone  he 
might  have  intended  to  dispose  of  by  a  future  codicil. 

2  East,  488,  Thomas  v.  Evans.  Before  the  statute  of  frauds,  an  intention  to  revoke 
in  future  expressed  by  parol,  was  no  revocation.  Cro.  Ja.  497,  Cranvel  v.  Sanders, 
Moor.  874,  Case  of  the  Co-heirs  of  Sir  W.  Rider. } 

A  testator  made  a  will  of  his  lands,  and  afterwards  gave  the  same  lands 
to  the  same  person  by  a  latter  will,  but  omitted  to  cancel  the  former,  and 
afterwards  cancelled  the  latter,  and  both  wills  were  in  the  testator's  cus- 
tody at  the  time  of  his  death,  the  second  cancelled,  the  first  uncancelled. 
The  question  was,  Whether,  under  these  circumstances,  the  first  will  was 
to  be  considered  as  revoked,  and  the  devisor  consequently  dead  intestate. 
Per  curiam, — A  will  is  ambulatory  till  the  death  of  the  testator.  If  the 
testator  let  it  stand  till  he  die,  it  is  his  will ;  if  he  do  not  suffer  it  to  do 
so,  it  is  not  his  will.  Here,  though  the  testator  made  two  wills,  yet  the 
second  Avill  never  operated ;  for  it  was  only  intentional,  and  the  testator 
changed  his  intention,  and  cancelled  the  second,  so  that  it  had  no  effect : 
it  was  as  no  will  at  all,  being  cancelled  before  his  death  ;  then  the  former*, 
which  was  never  cancelled,  stood  as  his  will ;  for  none  of  the  cases  of 
revocations  in  law,  by  alteration  of  circumstances,  applied  to  this  sort  of 
case  ;  and  it  was  clearly  not  a  revocation  within  the  meaning  of  the  sta- 
tute of  frauds,  none  of  the  circumstances  delineated  in  that  statute  ex- 
isting in  this  case. (a) 

Goodright  v.  Glazier,  4  Burr.  2512;  and  see  Perk.  fol.  210,  §479 ;  44  Ass.  pi.  30, 
M.  44  E.  3,  33.  ||But  the  Court  of  Delegates  have  held  as  to  wills  of  jxrsonalty,  that 
the  mere  act  of  cancelling  the  second  will  does  not  alone  revive  the  first,  without  other 
circumstances.  1  Phill.  R.  375,  400 ;  and  see  2  Rob.  on  Wills,  32.  ||  {Parol  evidence 
may  be  given  to  show  whether  the  testator,  by  cancelling  the  second  will,  meant  to 
revive  the  former  instrument  or  to  die  intestate.  The  evidence  does  not  go  directly 
to  destroy  an  existing  will,  but  merely  to  prove  that  he  did  not  intend  to  re-establish 
a  will  which  he  had  once  actually  destroyed.  2  Dall.  200,  Boudinot  v.  Bradford  ;  Ibid. 
280,  Lawson  v.  Morrison.}    (a)  Vide  \  0. 

N,  in  1759,  duly  executed  his  last  will  and  testament,  and  also  a  dupli- 
cate thereof,  but  at  the  same  time  declared  that  it  was  not  a  will  to  his 
liking,  and  that  he  should  alter  it.  Afterwards,  in  1761,  he  made  another 
will,  which  was  also  duly  executed,  the  devises  in  which  were  different  from 
those  in  the  will  of  1759,  and  at  the  end  of  it  there  was  a  declaration,  by 
which  he  revoked  all  former  wills.  After  executing  the  latter  will,  N 
took  one  part  of  the  old  will  in  his  hands,  tore  off  the  name  and  seal,  and 
directed  the  person  who  had  made  the  new  will  to  cut  off  the  names  of  the 
witnesses  to  the  old  one,  which  he  did  in  N's  presence.  N  at  the  same 
time  said,  that  a  duplicate  of  the  former  will  was  in  the  hands  of  W,  a 
devisee  therein.  He  then  delivered  the  new  will  to  the  person  who  made 
it,  requesting  him  to  take  it  away  with  him  to  his  house,  and  keep  it,  for 
reasons  Avhich  he  mentioned.  Afterwards  a  principal  devisee  in  the  last 
will  died,  soon  after  which  the  testator  sent  for  the  last  will,  and  in  1762 
had  this  will  returned  him.  The  testator,  before  his  death,  sent  for  an 
attorney  to  make  a  new  will,  but  became  senseless  before  he  arrived.  On 
his  death,  one  part  of  the  will  of  1759,  and  also  the  will  of  1761,  were 
round  together  in  a  paper,  both  cancelled.  The  other  part  of  the  will  of 
1759  was  found  uncancelled  in  the  testator's  room  among  other  deeds  and 
papers;  how  it  came  there  did  not  appear;  but  W,  a  devisee  therein,  was 
in  the  house  when  the  searches  were  made.  And  the  question  was,  Whe- 
ther the  testator  died  intestate,  or  not ;  that  is,  whether  the  will  of  1759 


OF  WILLS  AND  TESTAMENTS.      551 

(H)  How  Wills  may  be  avoided.     (Revocation  by  cancelling,  &c.) 

was  revoked?  And  it  was  held,  that  the  will  of  17.59  was  clearly  re- 
voked: first,  by  the  new  will  of  17G1,  which  was  a  complete,  legal,  and 
effectual  will,  and  would  have  revoked  the  former,  whether  it  had  been 
cancelled  or  not;  because  at  the  end  of  it  there  was  a  declaration,  by 
which  he  revoked  all  former  wills :  secondly,  because  the  testator  had 
actually  cancelled  the  will  of  1759. 

Burtonshaw  v.  Gilbert,  Coop.  49.     ||  See  Wiusor  v.  Pratt,  2  Bro.  L  B.  G56  ;  Stride 
v.  Cooper,  1  Phill.  R.  334.11 

||  Where  a  testator  cancels  the  part  in  his  custody,  the  strong  legal 
presumption  is,  that  the  duplicate  in  the  possession  of  another  person  was 
not  meant  to  prevail.  If  both  are  in  the  possession  of  the  testator,  the  one 
cancelled  and  the  other  uncancelled,  the  presumption  of  revocation  still 
holds,  but  it  has  less  strength.  If  both  are  in  the  testator's  possession, 
the  one  altered  and  cancelled,  and  the  other  in  statu  quo  prim,  the  pre- 
sumption against  the  operative  existence  of  either  may  still  remain,  but 
with  a  strength  yet  more  diminished. 

Pembertoii  v.  Pemberton,  18  Ves.  290. 

Where  a  testator  devised  lands  to  two  trustees,  in  trust  for  certain  pur- 
poses by  a  will  duly  executed,  and  afterwards  struck  out  the  name  of  one 
of  the  trustees,  leaving  the  general  purposes  of  the  trust  unaltered,  and 
did  not  republish  his  will :  it  was  held  that  this  did  not  operate  as  a  gene- 
ral revocation,  so  as  to  let  in  the  heir,  since  the  testator's  intent  was  only 
to  revoke  by  substituting  another  good  devise  ;  and  as  this  could  not  take 
effect  for  want  of  the  requisites  of  the  statute,  it  should  not  operate  as  a 
revocation  ;  and  at  most,  it  could  only  be  a  revocation  pro  tanto  as  to  the 
trustee,  whose  name  was  obliterated,  leaving  the  devise  good  as  to  the 
old  trustee,  whose  name  was  retained. 

Short  v.  Smith,  4  East,  419.  See  Larkins  v.  Larkins,  3  Bos.  &  Pul.  10,  109,  ace. : 
Grantley  v.  Garth waite,  2  Russell,  90,  H 

M,  by  his  will,  gave  particular  lands,  and  his  personal  estate  to  be  laid 
out  in  lands,  to  charitable  uses;  and  then  by  a  codicil,  reciting  his  will,  and 
that  he  had  devised  his  lands  to  such  uses;  "but  that  there  had  been  an 
act  of  parliament,  intituled,  '  the  mortmain  act,'  and  being  in  doubt  whether 
the  devise  made  by  him  to  such  charitable  uses  would  be  good  or  not,  and 
being  still  desirous,  as  far  as  in  him  lies,  to  confirm  his  said  will,  never- 
theless if,  by  the  act  of  parliament,  or  by  any  construction  of  law  there- 
upon, the  estate  is  not  well  devised,  and  cannot  go  to  those  uses,  then  and 
in  such  case  he  gave  the  lands  to  B  and  his  heirs."  Afterwards  M  made 
another  codicil,  reciting  as  before,  and,  "that  being  advised  the  devise  of 
his  lands  would  be  void,  and  it  being  his  intention  the  charity  should  be 
continued,  and  being  advised  his  personal  estate  could  be  given,  he  did  there- 
fore, by  this  codicil,  give  his  personal  estate  to  the  charitable  uses  before 
mentioned,  and  he  did  thereby  give  his  real  estate  to  B."  Between  the 
time  of  making  the  will  and  the  codicils,  the  mortmain  act  passed ;  and 
the  question  was,  Whether,  upon  the  construction  of  all  the  instruments, 
the  last  codicil  was  a  revocation  of  the  first  will  ?  which  turned  upon  the 
point,  whether  the  last  codicil,  as  to  its  revoking  the  will,  Avas  put  singly 
upon  the  point  of  law,  whether  the  devise  was  valid  or  not  under  the  mort 
main  act ;  or  whether  the  testator,  having  been  advised  that  his  personal 
estate  had  been  so  much  increased  as  to  be  sufficient  to  support  the  charity, 
(for  the  codicil  was  made  a  considerable  time  after  the  will,)  taking  the 


552      OF  WILLS  AND  TESTAMENTS. 

(H)  How  Wills  may  be  avoided.     (Revocation  by  Codicil.) 

whole  into  his  consideration,  viz.,  the  point  of  law  upon  the  statute,  viz.7 
that  the  devise  of  the  real  estate  would  be  void,  the  fact  that  he  might 
make  a  good  disposition  of  his  personal  estate  to  the  uses  of  the  charity, 
and  that  it  would  be  sufficient  for  the  purpose,  meant  an  actual  revocation 
of  the  will  as  to  the  real  estate  in  all  events.  And  on  a  case  sent  from  the 
Court  of  Chancery  to  the  Court  of  King's  Bench,  they  certified  that  the 
real  estates  were  well  devised  to  B  by  the  last  codicil ;  the  necessary  con- 
clusion from  which  is,  that  it  was  a  revocation  of  the  will. 
Attorney-general  v.  Lloyd  et  al.,  3  Atk.  552;  S.  C,  1  Ves.  32. 

£me  made  his  will,  devising  the  bulk  of  his  real  estate  to  three  trustees  on 
certain  trusts,  and  some  particular  lands  to  charitable  uses.  He  then  made 
a  codicil,  which  he  published  and  declared  should  be  annexed  to  and  be 
taken  as  part  of  his  will ;  and  making  some  alterations  thereby  in  the  dis- 
position of  the  trust  of  the  bulk  of  his  estate,  after  reciting  the  devise  to 
the  charity,  he  devised  the  same  lands,  together  with  another  piece  of  land, 
to  the  same  three  trustees  and  two  others,  and  their  heirs,  upon  the  same 
special  trusts  and  confidences  as  in  the  will,  and  concluded  with  confirming 
all  other  parts  of  his  former  will.  Upon  these  instruments  it  became  a 
question,  Whether  this  trust  for  the  charity  could  take  effect  ?  The  doubt 
arose  from  the  circumstance  of  the  mortmain  act  having  passed  in  the  time 
that  intervened  between  the  making  of  the  two  instruments.  If  the  co- 
dicil revoked  the  will  as  to  the  charity,  it  was  clear  that  it  could  not  take 
effect ;  because  the  devise  to  it  in  the  codicil,  that  being  made  after  the  act 
passed,  was  void.  It  was  therefore  contended  by  those  who  opposed  the 
devise  to  the  charity,  that  by  the  codicil,  the  devise  both  as  to  the  legal 
estate  and  trust  was  revoked ;  for  the  whole  fee,  at  law,  was  certainly 
altered,  by  the  devise,  to  five  trustees  instead  of  two.  It  passed  to  different 
persons  in  different  manners ;  the  trustees  must  claim  under  the  codicil : 
an  ejectment  must  have  been  brought  in  their  five  names ;  they  must 
have  joined  in  any  conveyance :  the  adding  more  land  also  showed  an 
intent  to  make  a  new  regulation.  But  Lord  Hardwicke  was  of  opinion, 
that  the  beneficial  interests  and  profits  to  the  charity  were  not  revoked  but 
confirmed  by  the  codicil ;  and  one  ground  of  his  lordship's  opinion  was, 
from  the  nature  of  the  instrument  which  effected  a  devise  only  in  the  de- 
gree expressed ;  and  therefore,  though  the  codicil  effected  a  new  devise 
of  the  legal  estate  by  giving  it  to  the  same  trustees  and  two  others,  and 
an  alteration  of  the  trust  estate  by  a  variation  of  the  devise  of  the  surplus 
profits,  it  left  the  trust  for  the  charity  exactly  the  same  as  under  the  will. 

Willet  v.  Sanford,  1  Ves.  178,  186. 

S  being  seised  in  fee  of  a  house  at  Bath,  and  of  other  freehold  estates 
of  the  yearly  value  of  300?.,  and  of  other  estates  of  the  value  of  500?.  a 
year  in  remainder  after  the  death  of  his  father,  made  his  will,  and  thereby 
gave  all  his  lands  in  possession,  reversion,  or  remainder,  except  the  house 
at  Bath,  upon  trust  to  sell  and  dispose  of  the  said  lands ;  and  to  place  the 
money  arising  therefrom  upon  real  security,  and  out  of  the  interest  and  pro- 
duce thereof,  to  pay  his  wife  four  hundred  pounds  a  year,  in  lieu  of  so  much 
a  year  which  she  would  be  entitled  to  by  their  marriage  settlement.  And 
he  gave  to  his  wife,  in  satisfaction  of  the  remaining  500?.  which  she  could 
claim  by  the  settlement,  his  house  in  Bath  for  her  life,  and,  after  her  death, 
devised  it  to  his  eldest  son.  After  reciting  his  wife's  bein£  enseint,  he 
gave  to  such  child,  whether  son  or  daughter,  3000?.  to  be  paid  out  of 


OF  WILLS  AND    TESTAMENTS.       553 

(H)  How  Wills  may  be  avoided.     [Revocation  by  Codicil.) 

the  moneys  arising  by  the  sale  of  the  lands,  and  to  be  paid  at  his  or  her 
age  of  twenty-one.  He  did  further  by  his  will  direct,  that,  when  the 
estates  directed  by  him  to  be  sold  were  actually  sold,  and  the  moneys 
arising  from  them  invested  in  the  said  securities,  100/.  a  year  should  be 
given  to  his  wife  for  the  bringing  up  of  his  daughter  M  and  cut;/  after-born 
child:  and  if  his  said  daughter,  or  such  after-born  child,  should  happen  to 
die  before  his  or  her  legacy  should  become  due,  that  then  such  legacy 
should  sink  into  the  residuum  for  the  benefit  of  his  son.  After  some  pecu- 
niary legacies  he  gave  the  rest,  residue,  and  remainder  of  his  estate,  &c, 
to  his  son ;  but,  in  case  he  should  die  before  twenty-one  without  issue,  he 
then  gave  and  becpueathed  the  same  residuary  estate  to  the  child  with  which 
hit  wife  was  enseint,  if  a  son,  as  his  own  for  ever:  but,  in  case  such  child 
should  prove  a  daughter,  then  he  gave  the  same  residuary  estate  betAveen  his 
two  daughters  as  tenants  in  common.  At  the  time  of  making  his  will  the 
testator  had  a  son  and  a  daughter,  and  his  wife  was  enseint  with  another 
child  (a  daughter)  afterwards  named  J  M.  After  the  date  of  the  will,  the 
testator  sold  his  house  at  Bath,  and  had  two  daughters  born,  J  M  and  A  S. 
After  the  sale  of  the  house  in  Bath,  and  the  birth  of  his  two  daughters,  the 
testator,  in  his  own  hand,  made  the  following  alterations  in  his  will ;  but 
the  making  thereof  was  not  attested,  nor  the  will  republished. — In  the  de- 
vise to  the  trustees  the  exception  of  the  house  at  Bath  was  struck  out. — In 
declaring  the  trusts  of  that  devise,  so  far  as  related  to  his  wife's  annuity, 
he  interlined  the  word  "fifty,"  so  that  the  annuity  was  altered  to  450?. 
The  bequest  to  his  ivife  of  the  house  in  Bath  was  struck  out,  and  the  re- 
mainder to  his  son.  The  recital  of  his  wife  s  being  enseint,  and  the  legacy 
of  3000?.  ivere  struck  out,  and  instead  thereof,  he  inserted  these  words, 
"  I  give  to  my  two  daughters,  J  M  and  A  S,  2000?.  each.'"  In  the  direction 
for  bringing  up  his  daughters,  he  made  the  word  "daughter"  daughters, 
and  instead  of  the  words  "  after-born  child,"  he  inserted  the  names  uJ3f 
and  A  8."  In  the  clause  respecting  the  lapse  of  the  legacies,  the  word 
"daughter"  w us  made  plural,  the  words  "after-born  child"  vi  eve  struck  out, 
and  instead  of  "  his  or  her"  the  word  "  their"  was  inserted.  He  also  made 
alterations  as  to  his  pecuniary  legacies.  The  residuary  devise  to  the  child 
of  which  the  wife  was  enseint  was  likewise  struck  out,  and  instead  of 
the  word  "two"  before  "daughters"  he  substituted  the  word  "three." 
The  question  referred  to  the  opinion  of  the  court  was,  "  Whether,  by  the 
will  of  the  testator,  as  altered,  obliterated,  and  interlined  by  him,  any,  and 
what  part,  of  the  real  estate  therein  mentioned,  passed  thereby  to  any  per- 
son, and  to  whom  ?  Which  depended  upon  whether  the  alterations  and 
obliterations  in  the  will  amounted  to  a  total  revocation  of  it  with  respect  to 
the  real  estate.  And  the  court,  (declining  to  give  any  opinion  as  to  the 
legacies  to  the  daughters,  recommending  the  decision  of  that  point  to  be 
deferred  until  the  son,  then  an  infant,  should  come,  of  age,)  as  to  the  de- 
vise to  the  trustees  to  sell,  were  clearly  of  opinion  it  was  not  revoked  but 
continued  in  force ;  and  they  certified  accordingly. 

Sutton  v.  Sutton,  Cowp.  812. J 

A,  in  December,  1715,  makes  his  will,  and  signs,  seals,  and  publishes 
it  in  the  presence  of  four  witnesses,  who  attest  and  subscribe  the  same  in 
his  presence,  and  thereby  gives  to  H  P,  his  son,  and  to  his  heirs  and  assigns 
for  ever,  his  lands,  &c.  The  2d  of  January  following,  he  orders  one  O  to 
make  an  alteration  in  his  will,  and  interlines  these  words:  "I  give  unto 
my  wife,  A  P,  and  her  assigns,  my  lands  in  W  for  her  life ;  and  after  her 

Vol.  X.— 70  3  A 


554       OF  WILLS  AND  TESTAMENTS. 

(H)  How  Wills  may  be  avoided.     [Revocation  by  Codicil.) 

decease  to  my  son  H  and  his  heirs."  The  will  is  read  to  the  testator,  and 
he  approves  of  it  with  the  interlineation  :  he  puts  his  seal  upon  the  wax  in 
the  presence  of  three  of  the  same  witnesses,  but  does  not  write  his  name 
de  novo,  neither  do  the  witnesses  subscribe  theirs  de  novo.  The  question 
was,  Whether  this  was  a  good  devise  to  A  P  for  her  life  ?  This  doubt 
was  chiefly  upon  the  29  Car.  2,  whether  this  alteration  was  not  a  revoca- 
tion within  the  statute.  Every  bequest  is  to  continue  in  force  until  the 
same  be  burnt,  &c,  by  the  testator  or  his  direction,  in  his  presence,  or 
unless  the  same  be  altered  by  some  other  will  or  writing  of  the  devisor, 
signed  in  the  presence  of  three  or  four  witnesses,  declaring  the  same.  If 
the  will  be  signed,  it  may  be  in  any  part ;  and  per  Parker  and  Eyre, — The 
putting  a  seal  is  a  good  signing ;  for,  per  Parker,  C.  J.,  the  intention  of 
the  parties  signing  it,  and  the  witnesses  attesting,  is  only  that  the  witnesses 
may  know  it  again.  This  act  is  fully  penned,  and  is  not  to  be  expounded 
away.  Per  Powis, — Here  is  no  danger  of  fraud  or  perjury :  here  is  a 
new  devise,  and  not  an  alteration  only.  Per  Eyre, — Every  thing  is  right, 
save  the  new  subscribing  by  the  witnesses;  the  case  of  Lea  v.  Libb  in 
Shower,  68,  69,  is  right ;  nobody  can  say  this  new  bequest  was  signed  in 
the  presence  of  the  testator.  Per  Eyre  and  Parker, — There  must  be  more 
than  a  bare  revocation.  It  must  be  signed  in  the  presence  of  three  wit- 
nesses. The  altering  a  will  must  be  understood  of  a  revoking,  i.e.  an' alter- 
ation  by  revocation.  The  latter  implies  the  whole  will,  the  former  of  any 
part,  otherwise  this  alteration  will  clash  with  the  former  clause ;  so  that 
if  the  testator  revokes  the  whole  or  part,  it  shall  be  by  will  or  writing, 
signed  in  the  presence  of  Avitnesses,  but  they  are  not  obliged  to  subscribe. 
Per  Eyre, — If  H  P  had  been  here  found  heir  at  law,  then  A,  the  lessor 
of  the  plaintiff,  might  have  been  helped ;  for  if  this  be  an  alteration,  so 
as  II  is  not  to  have  the  lands  till  after  A's  death,  she  will  have  an  estate 
by  operation  and  implication  of  law. 

Yin.  Abr.  tit.  Devise,  (R),  4,  pi.  3,  Townshend  v.  Pearce. 

[So,  if  a  testator  devises  an  absolute  estate  in  fee  to  A,  and  afterwards, 
by  a  subsequent  devise,  gives  him  only  an  estate-tail  in  the  same  land ; 
it  is  a  revocation  only  to  the  extent  of  the  difference  between  an  estate- 
tail  and  an  estate  in  fee. 

Per  Lord  Mansfield,  Cowp.  90.] 

B,  by  will  duly  executed  pursuant  to  the  statute  of  frauds,  and  elated  in 
October,  1738,  gave  and  devised  800/.  to  his  sister  E,  and  also  400/.  to  his 
sister  L,  and  other  small  pecuniary  legacies,  and  then  gave  all  his  real  and 
personal  estate,  not  otherwise  therein  disposed  of,  after  payment  of  his  debts 
and  legacies,  to  S,  his  brother,  and  appointed  him  executor.  Afterwards 
B,  by  a  subsequent  will,  dated  May,  1741,  and  revoking  all  former  wills, 
gave  and  bequeathed  ft>0/.  to  his  sister  L,  and  400/.  to  his  sister  E,  and 
the  rest  and  residue  of  his  estate,  real  and  personal,  he  disposed  of  as  before. 
But  the  latter  will  was  not  executed  according  to  the  statute  of  frauds. 
Lord  Hardwicke  being  of  opinion,  that  these  legacies  being  to  be  taken 
originally  as  personal,  because  although  the  latter  words  created  a  charge 
upon  the  land,  yet  they  were  in  their  primary  intention  personal ;  the  next 
question  was,  Whether  the  legacies  given  by  the  first  will  were  revoked  bv 
the  second  in  toto,  they  being  given  differently  and  to  different  persons  ;  or, 
whether  the  legacies  given  by  the  seCond  Avill  were  to  be  considered  as 
only  modifications  of  the  first,  and,  consequently,  as  revocations  of  them 


OF   WILLS   AND   TESTAMENTS.      555 

(II)  How  avoided.     (Revocation  by  subsequent  Jtu-ise,  dr.) 

pro  tanto  only ;  the  consequence  of  which  would  be,  that  the  latter  lega- 
cies would  continue  a  charge  upon  the  land  ?  And  Lord  Hard  wick  e  was 
of  opinion,  that  the  legacies  given  by  the  second  will  were  to  be  con- 
sidered as  part  of  the  money  given  by  the  first,  only  new-modelled  or 
qualified ;  and  that  the  second  will,  therefore,  was  a  revocation  of  the 
first  pro  tanto  only ;  and,  accordingly,  decreed  the  raising  of  the  less 
sums  out  of  the  real  estate  of  the  testator. 

Brudonell  v.  Boughton,  2  Atk.  268.     ||  See  1  Ves.  &  B.  446  ;  Rose  v.  Conynghame, 
12  Ves.  29.|| 

If  A  by  his  will  devises  all  the  residue  of  his  personal  estate  to  B  and 
C,  and  makes  them  executors  ;  and  after,  by  a  codicil,  cancels  and  revokes 
every  legacy,  thing,  and  part  relating  to  B,  and  revokes  his  being  exe- 
cutor ;  0  shall  have  the  whole.  A  revocation,  without  a  new  gift,  shall 
have  the  same  effect  as  if  it  had  been  expressly  given  ;  and  whether  it  be 
by  codicil  or  obliteration,  it  is  the  same. 

MS.  Rep.  Humphries  v.  Taylor,  in  Cane,  Hill.  25  G.  2.     ||  See  4  East,  419.|| 

{So  if  a  devise  be  to  three  persons  as  joint-tenants  in  fee,  and  the  tes- 
tator afterwards  strike  out  the  name  of  one  of  the  devisees^  and  there  be 
no  republication,  the  erasure  will  operate  only  as  a  revocation  of  the  will 
pro  tanto  ;  and  the  other  devisees  will  take  the  whole.  But  if  the  other 
devisees  were  to  acquire  any  estate  which  they  had  not  before,  something 
beyond  a  mere  revocation  would  be  necessary.  If,  therefore,  the  devi- 
sees had  been  tenants  in  common,  upon  the  erasure  of  one  name,  the  re- 
maining two  would  take  no  more  than  two-thirds  of  the  estate. 

3  Bos.  &  Pul.  16,  109,  Larkins  v.  Larkins. 

So  where  one  devised  lands  to  two  trustees  in  trust  for  certain  pur- 
poses, and  afterwards  struck  out  the  name  of  one  of  those  trustees  and 
inserted  the  names  of  two  others,  leaving  the  general  purposes  of  the  trust 
unaltered,  though  varying  in  certain  particulars,  and  did  not  republish 
his  will :  it  was  held  that  his  intent  appearing  to  be  only  to  revoke  by 
the  substitution  of  another  good  devise  to  other  trustees,  as  such  new  de- 
vise could  not  take  effect  for  want  of  the  requisites  in  the  statute  of 
frauds,  it  should  not  operate  as  a  revocation ;  or  at  most  it  could  only 
operate  as  a  revocation  pro  tanto,  as  to  the  trustee  whose  name  was  obli- 
terated :  leaving  the  devise  good  as  to  the  old  trustee  whose  name  was 
retained :  the  insertion  of  the  names  of  the  new  trustees  being  for  want 
of  a  proper  publication  inoperative. 

4  East,  419,  Short  v.  Smith. } 

||  Where  testator  bequeathed  as  follows :  "As  to  all  that  my  leasehold 
house  in  L,  and  all  my  household  goods  and  furniture  there  and  at  S,  and 
as  to  all  my  plate,  &c,  and  all  the  residue  of  my  goods  and  personal  es- 
tate, I  give  and  bequeath  the  same  to  A ;"  and  by  a  codicil  he  revoked 
the  bequest  of  the  residue  to  A,  and  gave  "  the  residue  of  his  said  per- 
sonal estate  to  B ;"  the  gift  of  the  general  residue  only,  and  not  of  the 
articles  enumerated,  was  revoked  by  this  codicil. 

Clarke  v.  Butler,  1  Meriv.  304.  J] 

A  subsequent  devise  to  a  person  incapable  of  taking,  is  a  revocation 
of  a  precedent  devise  to  a  person  capable.  This  was  approved  by  the 
counsel  on  both  sides  as  good  law. 

10  Mod.  233,  Roper  v.  Radcliffe  ;  ||  1  Bro.  P.  C.  450.  || 


556      OF   WILLS   AND    TESTAMENTS. 

(H)  How  avoided.     [Revocation  by  Changes  of  Estate,  &c.) 

Thus,  in  a  devise  of  lands  to  A,  if  afterwards  the  devisor  devises  the 

same  lands  to  B,  who  was  a  papist,  both  devises  are  void  ;(a)  for  though 

the  last  is  void  as  a  will,  yet  it  is  good  as  a  revocation. 

Vin.  Abr.  tit.  Devise,  (R),  3,  p.  141.     \\{a)  But  by  the  18  G.  3,  c.  GO,  papists  tak- 
ing the  oath  thereby  required  are  empowered  to  take  lands  by  descent  or  purchase.  || 

||  Where  there  was  a  devise  of  real  estates  to  be  sold,  and  the  produce 
to  be  applied  in  the  same  manner  as  the  residue  of  the  personal  estate, 
and  testator  made  a  codicil,  not  executed  so  as  to  pass  real  estate  revok- 
ing the  bequest  of  the  residue,  it  was  held  that  this  did  not  affect  the 
will  as  to  the  real  estate. 

Gallini  v.  Noble,  3  Meriv.  691 ;  and  see  Francis  v.  Collier,  4  Russell,  331. [j 

|j  2.  Of  Revocations  by  subsequent  Contracts,  Changes  of  Estate,  and  Alterations  in 

Circumstances.  || 

Per  Hardwicke,  Lord  Chancellor, — The  general  principle  is,  that  at 
the  time  of  the  devise,  the  devisor  must  have  a  disposing  capacity,  and 
an  estate  in  the  land  devised ;  and  the  estate  must  remain  in  the  same 
plight  and  condition  until  his  death :  for  the  least  alteration  by  any  act 
of  his  makes  it  a  different  estate,  and  shows  a  different  intention,  and 
therefore  is  an  actual  revocation.  Thus,  if  one  seised  in  fee  clevises,  then 
enfeoffs  another  to  the  use  of  himself  in  fee,  though  it  is  the  old  use  that 
remains,  yet  it  is  a  revocation,  though  it  is  his,  on  the  feoffment.  So  of 
a  bargain  and  sale  without  enrolment.  So,  if  a  man,  thinking  himself 
tenant  in  fee,  devises,  and  then,  apprehending  himself  to  be  only  tenant 
in  tail,  suffers  a  recovery  with  intent  to  confirm  his  will,  it  is  a  revoca- 
tion.^) As  to  mortgages,  they  are  exceptions  out  of  the  rule.  At  law 
a  mortgage  for  years,  and  in  equity  a  mortgage  in  fee,  are  revocations 
pro  tanto  only ;  and  the  reason  is,  that  a  mortgage  is  only  a  security  ;(b) 
and  though  it  be  a  conveyance  of  a  real  estate,  yet  in  this  court  it  is  a 
chattel  interest  only,  and  goes  to  the  executor,  and  it  gives  no  dower. 
In  the  case  wherein  these  leading  principles  were  established,  after  the 
testator  had  devised  all  his  manors,  lands,  tenements,  and  hereditaments, 
he  by  a  deed  conveyed  an  advowson  which  he  was  seised  of  at  the  time 
of  making  his  will,  to,  and  to  the  use  of  trustees  and  their  heirs,  in  trust 
to  present  the  church  when  void  to  a  particular  person,  if  qualified,  on 
the  terms  prescribed  therein ;  and  if  such  person  should  be  incapable, 
then  to  present  such  clerk  as  A  should  nominate ;  and  in  default  of  nomi- 
nation by  him,  as  the  trustees  should  think  fit.  The  person  intended 
was  presented ;  and  on  a  bill  brought  by  the  heir  at  law  of  the  testator, 
to  have  a  legal  conveyance  of  the  residue  of  the  advowson ;  the  question 
was,  Whether  this  deed,  being  only  a  trust  for  a  particular  purpose,  aa 
it  was  alleged,  was  a  total  or  partial  revocation  ?  It  was  determined  by 
Lord  Chancellor,  after  arguing  as  above,  that  it  was  a  total  revocation ; 
it  being  a  grant  of  the  legal  interest;  and  the  trust  was  a  real  and  bene- 
ficial interest  given  by  it  to  the  trustees,  that  of  nominating  themselves 
in  default  of  A's  nominating ;  and  he  decreed  a  conveyance  to  be  made 
according  to  the  prayer  of  the  bill. 

MS.  Rep.  Sparrow  v.  Hardcastle,  in  Cane.,  Pasc.  27  G.  2;  [3  Atk.  798,  and  Ambl. 
224  ;]  ||  7  Term  R.  416.||  [But  see  2  Ves.  jun.  432,  433.]  ||  \b)  So,  also,  if  a  testator, 
aftor  having  made  his  will,  levies  a  fine  to  such  uses  as  he  shall  appoint,  and  dies  with- 
out a  new  will,  the  will  prior  to  the  fine  is  revoked.  Doe  v.  Dilnot,  2  New  R.  401 ; 
and  see  Darley  v.  Darley,  3  Wils.  6 ;  Brydges  v.  Chandos,  2  Ves.  jun.  430 ;  Parker  v. 
Biscoe,  8  Taunt.  099 ;  3  Moo.  24.     And  where  the  tenant  to  the  praecipe  was  named 


OF  WILLS  AND  TESTAMENTS.       557 

(H)  How  avoided.     [Revocation  by  Changes  of  Estate,  dr.) 

Edward,  his  real  name  being  Edmund,  the  will  was  still  held  revoked,  as  the  recovery 
■was  good  by  estoppel  against  the  testator  and  all  claiming  under  him.  Doe  v.  Llau- 
daff,  2  New  R.  491.  (6)  See  G  Yea.  221 ;  17  Ves.  134  ;  2  Hob.  on  Wills.  58.  And 
bo  the  conveyance  of  a  testator's  property,  effected  by  his  becoming  bankrupt,  is  held 
no  revocation  as  to  the  surplus.     Charman  v.  Charman,  14  Ves.  580.|| 

J  S,  seised  of  a  lease  for  lives,  devises  it ;  and  afterwards  J.  S  surren- 
ders the  old  lease,  and  takes  a  new  one  to  him  and  his  heirs  for  three 
lives.  Decreed  by  Lord  Chancellor  King,  that  this  renewal  of  the  lease 
was  a  revocation  of  the  will  as  to  this  particular. 

3  P.  Wms.  106,  170,  Marwood  v.  Turner.  For  by  the  surrender  of  the  old  lease, 
J  S  the  testator  had  put  all  out  of  him,  had  divested  himself  of  the  whole  interest,  so 
that  there  being  nothing  left  for  the  devise  to  work  upon,  the  will  must  fail ;  and  the 
new  purchase  being  of  a  freehold  descendible,  could  not  pass  by  a  will  made  before 
euch  purchase.    Ibid.  171.    pRoburn  v.  Shortridge,  2  Blackf.  480.gf 

So,  where  a  testator  devised  by  his  will  a  leasehold  estate  under  Mag- 
dalen College,  Oxon,  and  after  the  making  of  his  will  renewed  his  lease 
by  surrendering  the  old  one,  and  making  a  new  lease ;  it  was  determined 
by  Lord  Chancellor,  that  this  was  a  revocation  of  his  will.  And  though 
the  testator,  after  the  renewal,  looking  among  his  papers,  had  said  "this 
is  my  will,"  that  was  held  to  be  no  republication. 

MS.  Rep.  Sir  Tho.  Abnev  V.  Miller  in  Can.  Trim  1743.  ||  See  Slater  v.  Norton, 
16  Ves.  114;  Ibid.  197  ;||  [2  Atk.  593;  and  2  Ves.  418,  S.  C.  Note.— In  this  case 
there  were  two  leases,  and  as  to  the  disposition  of  one  of  them  the  Chancellor  held, 
that  the  will  remained  valid,  because  the  lease  was  incomplete  at  the  testator's  death, 
for  although  he  had  surrendered  and  accepted  a  new  lease,  yet  it  was  not  sealed  with 
the  college  seal,  till  after  his  death.] 

[A  testatrix  devised  all  her  lands,  tenements,  and  hereditaments  at  W 
in  Yorkshire,  and  all  her  tithes  and  ecclesiastical  dues  out  of  W  aforesaid, 
or  any  other  town  or  places  near  the  same.  At  the  time  of  making  the 
will,  she  was  possessed  of  a  lease  of  these  tithes  under  the  Archbishop  of 
York.  After  making  the  will,  she  surrendered  this  lease,  and  took  a  new 
one,  of  which  she  was  possessed  at  the  time  of  her  death.  The  question 
was,  Whether  the  renewal  was  a  revocation  of  the  will  ?  And  the  court 
held,  that  it  was ;  for  there  is  no  real  distinction  between  the  words  all 
my  tithes  at  W,  and  the  words  all  my  lease  or  interest  in  my  lease  at  W ; 
because  both  must  refer  to  the  interest  she  had  at  the  time  of  making  the 
will.  Then  that  interest  did  not  remain  at  the  death  of  the  testatrix ; 
for,  by  the  surrender,  she  so  far  altered  her  interest,  that  what  were  her 
tithes  under  the  lease  at  making  the  will,  could  not  be  considered,  under 
the  foot  of  this  clause,  as  being  the  same  at  the  time  of  her  death ;  but 
she  acquired  a  new  estate  in  them,  to  commence  at  and  run  out  to  a  dif- 
ferent period  of  time.  It  must  then  be  considered,  that  the  testatrix 
acquired  a  new  interest  subsequent  the  will,  and,  consequently,  such  an 
interest  as  would  not  pass  by  the  words  used. 

Rudstone  v.  Anderson,  2  Ves.  418. 

Again,  S  by  his  will,  among  other  devises,  gave  and  devised  unto  B 
the  perpetual  advowson  and  disposal  of  the  living  or  rectory  of  W  for 
ever,  together  with  the  tithes  of  all  sorts  thereof.  The  rectory  of  W  was 
held  by  the  testator  by  lease  from  New  College,  Oxford,  for  the  term  of 
ten  years.  After  the  will  made,  the  testator  surrendered  up  that  lease, 
and  took  a  new  lease  from  the  college  for  ten  years  more,  and  was  pos- 
sessed of  the  rectory,  by  virtue  of  that  lease,  at  the  time  of  his  decease. 
And  the  question  was,  Whether  the  devise  of  the  advowson  was  revoked 

3a2 


558      OF  WILLS  AND  TESTAMENTS. 

(H)  How  avoided.     (Revocation  by  Changes  of  Estate,  &c.) 

by  the  surrender  and  renewal  ?    And  it  was  held,  that  the  surrender  and 
renewal  were  a  revocation. 

Hone  v.  Medcraft,  1  Brp.  Chan.  R.  261. 

It  is  necessary  here  to  observe,  on  these  cases  of  revocations  of  wills 
respecting  leases  by  subsequent  surrender  and  renewal  of  the  lease,  that 
they  turn  merely  on  the  penning  of  the  will,  viz.,  whether  the  words  are 
sufficient  to  pass  the  subsequent  renewed  interest,  and  not  on  any  ina- 
bility in  point  of  law  to  give  by  will  an  after-taken  lease ;  and  therefore 
if  such  lease  be  disposed  of  by  will  by  a  proper  form  of  words,  it  will  pass 
notwithstanding  any  subsequent  renewal.  As,  if  a  testator  give  "all  his 
estate,  right,  and  interest,  he  shall  have  to  come  in  such  lease  at  the  time 
of  his  death:"  such  right  of  renewal  will  pass  by  a  general  devise  of  the 
residue ;  or  by  a  devise  of  the  lease  together  with  the  right  of  renewal. 
And  in  the  latter  case,  if  the  devisor  do  nothing,  the  expiration  of  ths> 
old  term  will  not  bar  the  devisee ;  because  the  devise  carries  the  right  of 
renewal  as  well  as  the  lease  itself. 

Powell  on  Devises,  589.     Vide  Bunter  and  Cooke,   Salk.  237  ;  1  P.  Yf  ras.  575 ; 
2  Atk.  599 ;  3  Atk.  177. 

Upon  this  principle  Lord  Hardwicke  held,  in  the  case  of  Sterling  v. 
Lydiard,  that  where  the  testator  clearly  meant  to  dispose  of  his  whole 
personal  estate,  a  renewal  of  a  lease,  after  the  will  made,  was  no  revo- 
cation of  it.  In  the  case  alluded  to,  the  testator  devised  in  the  following 
manner,  viz.,  "As  to  all  and  singular  my  leasehold  estate,  goods,  chattels, 
and  personal  estate  whatsoever,  I  give  the  same  to  my  daughter  A  :"  and 
if  she  died  without  issue  living,  then  he  limited  it  over  in  the  same  man- 
ner to  B.  In  the  residuary  clause  the  testator  repeated  the  words  "all 
and  singular,  $0."  After  making  this  will,  he  renewed  a  lease  with  the 
dean  and  chapter  of  Windsor.  And  on  the  question,  Whether  this  re- 
newal was  a  revocation  of  the  will  as  to  the  lease  ?  Lord  Hardwicke 
said,  there  was  no  doubt  but  the  leasehold  estate  passed  by  the  will.  The 
lease  here  was  not  a  specific  legacy :  it  was  nothing  like  it.  The  clause 
was  only  an  enumeration  of  the  several  particulars  of  the  testator's  per- 
sonal estate,  but  the  devise  was  general  of  the  whole. 

Sterling  v.  Lydiard,  3  Atk.  199.    ' 

|j  Thomas  James,  by  will,  devised  life  leasehold  lands  to  his  wife,  and 
after  her  decease  to  his  brother's  daughters  for  such  estate  as  should  be 
then  to  come  therein,  and  directed  that  the  fines  for  renewal  should  be 
paid  by  his  wife  during  her  life,  and  after  her  decease,  by  his  brother's 
three  daughters,  as  such  fines  became  due :  he  then  made  a  disposition  as 
follows, — "I  give  and  bequeath  to  my  wife  Judith  James,  during  her  life, 
all  my  messuages,  lands,  and  tenements,  in  Vine  Street,  in  the  parish  of 
Lambeth,  which  I  hold  in  lease  under  Sir  William  East,  (the  premises  in 
question,)  for  all  the  residue  of  my  term  and  interest  therein  ;  and  after  her 
decease,  I  give,  and  bequeath  the  same  to  my  godson  Thomas  James,  his 
executors  and  administrators,  for  all  the  residue  of  the  term  and  interest  I 
shall  have  to  come  therein  at  my  decease."  The  testator,  at  the  time  of 
his  will,  was  in  possession,  under  a  lease  dated  12th  August,  17(59,  granted 
by  Sir  William  East,  of  the  premises  in  Vine  Street,  to  hold  for  twenty-one 
years,  from  Lady-day  preceding,  if  the  lessor  and  two  other  persons  should 
so  long  live,  with  a  covenant  by  the  lessee,  that,  in  case  of  the  death  of 
any  of  the  said  lives  (being  the  lives  upon  which  the  lessee  held  those  pre- 


OF  WILLS  AND  TESTAMENTS.       559 

(II)  How  avoided.     {Revocation  by  Changes  of  Estate,  dc.) 

mises,  with  others,  from  the  Archbishop  of  Canterbury,)  before  the  expi- 
ration of  the  term,  and  the  lessor  should  renew  from  the  archbishop,  he, 
the  lessee,  his  executors,  &c,  would  pay  a  proportionate  share,  with  the 
other  tenants,  of  the  fines  to  the.  archbishop  upon  any  such  renewal :  and 
Sir  W.  East  covenanted,  upon  such  renewal  of  the  original  lease  by  the 
archbishop,  to  grant  a  new  lease  of  the  premises  thereby  demised,  for  tin 
remainder  of  the  term  of  twenty-one  years,  which  should  be  then  to  come 
and  unexpired:  but  the  lease  contained  no  direct  covenant  for  farther  re- 
newal. The  testator  died  in  December,  1790,  the  lease,  which  expired 
on  25th  March  preceding,  not  having  been  renewed  by  him,  but  he  had 
remained  in  the  occupation  of  the  premises  until  his  death,  and  half  a 
year's  rent  under  this  occupation  had  been  paid  by  him,  after  the  expira- 
tion of  the  lease,  during  his  life.  Some  time  after  the  testator's  death, 
on  the  29th  March,  1791,  Sir  W.  E.  granted  to  Judith  James  a  new  lease 
of  the  premises  in  question,  to  hold  from  the  25th  day  of  March  for  forty- 
two  years,  if  three  persons  named  should  so  long  live.  The  bill  was  filed 
by  Thomas  James  named  in  the  will,  against  the  executors  of  Judith 
James,  the  testator's  widow,  praying  that  the  renewal  by  Judith  James 
might  be  declared  to  be  on  the  trusts  of  the  will.  The  answer  insisted 
that  she  took  a  lease  for  her  own  benefit ;  and  this  was  the  question.  The 
Master  of  the  Rolls  dismissed  the  bill,  on  the  ground  that  the  testator 
contemplated  giving  nothing  beyond  the  interest  which  he  had  existing  at 
his  death.  On  appeal,  the  Lord  Chancellor  considered  that  the  equitable 
question  before  him  must  depend  on  the  legal  question,  whether,  if  the 
lease  had  been  renewed  to  the  testator,  it  would  have  passed.  The  con- 
struction depended  on  the  whole  context  of  the  will :  and  his  lordship 
thought,  that  although  there  was  a  difference  in  the  leases,  the  lease  in 
question  not  containing  the  same  direct  covenant  for  renewal  which  oc- 
curred in  the  others,  yet  there  was  enough  in  the  lease  in  question  point- 
ing that  way,  to  lead  the  testator  to  think  that  the  expiration  of  the  term 
would  not  put  an  end  to  the  interest,  and  some  parts  of  the  will  were 
evidently  intended  to  pass  the  renewed  lease. 
James  v.  Dean,  11  Ves.  jun.  383.  || 

Again,  C,  in  right  of  a  prebend,  in  1714,  demised  certain  estates  by  in- 
denture to  one  of  his  children  for  twenty-one  years,  and  afterwards  a  sur- 
render was  yearly  made  thereof,  and  a  new  lease  granted  by  C.  The  les- 
see always  executed  a  declaration  of  trust,  declaring  that  his  or  her  name 
was  made  use  of  in  such  lease,  in  trust  for  the  father  for  so  many  years 
as  he  should  live  of  the  term,  and  then  for  such  person  or  persons  as  he 
should  by  deed  or  will  appoint ;  and  in  default  thereof,  to  and  among  his 
children  equally.  In  January,  1735,  C  made  his  will,  and,  after  giving 
several  legacies,  bequeathed  to  his  son  T  all  the  rest  of  his  goods,  chattels, 
and  estate,  luhether  real  or  'personal,  in  possession  and  reversion,  and  made 
him  executor.  And  then  came  this  supplemental  clause: — "Item,  It  is 
my  mind  and  will,  that  T  shall  have  the  disposal  of  the  lease  of  my  pre- 
bend of  made  to  my  daughter  S,  and  that  he  shall  receive  to  him- 
self all  the  profits  and  advantages  arising  from  it."  Afterwards,  in 
August,  1739,  a  surrender  and  new  lease  was  made  to  S,  and  a  declara- 
tion of  trust  delivered  as  before  mentioned.  Then  C  died  ;  and  Lord 
Hardwicke,  upon  that  part  of  the  case  which  related  to  the  operation  and 
extent  of  the  words  in  the  will,  said  that  the  question  was,  Whether  the 
benefit  of  the  renewed  lease  in  1739  passed  to  T  by  the  will  of  1735? 


560       OF  WILLS  AND  TESTAMENTS. 

(II)  How  avoided.     [Revocation  lnj  Changes  of  Estate,  &c.) 

which  depended  upon  the  question,  Whether  the  will  of  1735  was  suffi- 
cient to  pass  not  only  the  trust  of  the  lease  then  in  being,  but  also  the 
benefit  of  the  subsequent  renewals  ?  And  he  took  the  construction  of 
this  clause  in  as  extensive  a  manner  as  i£  the  testator  had  particularly 
recited  and  repeated  the  lease  and  declaration  of  trust,  and  given  it  to 
his  son ;  the  effect  of  which  would  have  been  to  have  given  him  the  whole 
trust,  not  the  trust  of  the  then  existing  term  only,  but  also  all  the  re- 
newals ;  and  therefore  extended  to  all  future  leases  as  well  as  those  in 
being.  The  word  advantages  was  undoubtedly  sufficient  to  take  in  all 
the  advantages  and  benefits  belonging  to  the  trust.  It  comprised  not 
only  the  profits  but  the  renewals,  which  were  consequential.  The  words 
of  the  will  were  very  sufficient  to  pass  not  only  the  trust  and  beneficial 
interest  then  subsisting,  but  also  the  renewed  lease. 
Carte  v.  Carte,  3  Atk.  174.] 

||  So,  also,  Sir  Thomas  Cave,  being  seised  in  fee  of  estates,  agreed  by 
marriage  articles  to  settle  the  same  so  as  to  secure  his  intended  wife's 
jointure  and  the  portions  of  younger  children,  and  then  upon  his  eldest 
son  and  his  heirs  male.  He  then  devised  the  same  estates,  in  case  he 
should  happen  to  die  without  leaving  issue  of  his  body  at  his  decease,  sub- 
ject to  any  jointure  he  might  make,  to  trustees  for  500  years,  on  certain 
trusts  ;  and  subject  thereto,  he  devised  all  his  real  estate  to  his  uncle  the 
Reverend  Charles  Cave.  The  testator,  after  this  will,  conveyed  the  same 
estates,  by  lease  and  release,  to  releasees,  to  the  use  of  himself  and  his 
heirs,  till  the  marriage,  and  for  default  of  issue,  subject  to  a  term  for 
securing  his  wife's  jointure,  to  himself  in  fee.  The  testator  married  ac- 
cordingly, and  died  without  issue,  leaving  his  sister,  Mrs.  Sarah  Otway, 
his  heir  at  law ;  and  on  an  ejectment  brought  against  the  heir,  on  the  de- 
mise of  the  trustees  under  the  will,  the  question  was,  whether  the  will  was 
revoked  by  the  subsequent  settlement ;  and  the  Court  of  Common  Pleas, 
and  afterwards  the  Court  of  King's  Bench,  held  that  it  was.  As  the  tes- 
tator parted  with  the  estate,  notwithstanding  the  old  use  resulted  to  him 
again,  still  the  conveyance  operated  as  a  revocation,  since  it  drew  out 
of  the  testator  the  subject  matter  on  which  the  will  was  to  operate. 

Goodtitle  v.  Otway,  1  Bos.  &  Pul.  570 ;  7  Term  It.  399 :  and  see  Cave  v.  Holford, 
2  Yes.  0U4. 

And  in  the  case  of  Vawser  v.  Jeffery,  (where  it  was  held,  that  a  cove- 
nant to  surrender  copyhold  lands  previously  devised  would  amount  to  a 
revocation,  if  the  surrender  would  have  that  effect  at  law,)  Lord  Eldon 
said, — "  It  is  now  settled,  at  least  I  shall  so  consider  it,  until  the  House 
of  Lords  decides  the  contrary,  that  if  a  man  devises  a  fee-simple  estate, 
and  afterwards  for  securing  a  jointure,  instead  of  limiting  a  jointure, 
which  would  be  quite  enough,  by  lease  and  release,  conveys  the  estate 
out  of  which  the  jointure  is  to  come  to  the  use  of  himself  for  life,  with 
remainder  to  the  intent  and  purpose  that  the  intended  wife  may  take  a 
rent  charge,  and  to  the  use  that  she  may  distrain,  and  then  to  enter,  with 
remainder  to  trustees  for  ninety-nine  years,  the  better  to  secure  the  join- 
ture, with  the  ultimate  remainder  to  himself  and  his  heirs,  although  the 
moment  he  takes  the  seal  oft'  the  wax,  his  old  estate  is  instantly  vested  in 
himself,  that  is  a  revocation  of  the  will." 

Vawser  v.  Jeffery,  2  Swanst.  273  ;  16  Ves.  519. 

In  the  above  case,  which  was  sent  for  argument  to  the  King's  Bench,  it 
was  there,  however,  held,  that  the  testator  having  devised  copyhold  lands 


OF  WILLS  AND  TESTAMENTS.       561 

(II)  How  avoided.     (Revocation  by  Changes  of  Estate,  drc.) 

to  A  for  life,  with  different  remainders  over,  and  having  surrendered  thein 
to  the  uses  of  his  will,  and  afterwards  conveying  his  estates  to  trustees  and 
their  heirs,  to  secure  a  jointure  to  his  intended  wife,  and  subject  to  a  term 
for  that  purpose  to  himself  in  fee,  and  having  surrendered  his  copyhold 
lands  to  those  uses,  that  this  did  not  amount  to  a  total  revocation  of  his 
will,  but  that  the  devisee  took  the  copyhold  land,  subject  to  the  charge 
created  by  the  settlement.  It  was  admitted  in  the  argument,  that  a  similar 
settlement  of  freeholds  would  have  been  a  revocation  of  a  previous  devise  ; 
but  in  case  of  copyholds,  it  was  argued  the  surrender  to  the  uses  of  the 
settlement  passed  no  more  than  was  required  for  effectuating  the  settle- 
ment, and  the  testator  was  still  in  as  of  his  old  estate. 

Vawser  v.  Jeffery,  3  Barn.  &  A.  462 ;  and  sec  S.  C.  3  Iluss.  479 ;  Hodges  v.  Green, 
4  Russ.  28-H 

If  a  man  devises  lands,  and  afterward  mortgages  the  same  for  years, 
and  then  levies  a  fine  sur  conusance  de  droit  come  ceo,  and  not  a  fine  sur 
concessit;  this  will  be  a  revocation:  but  if  there  had  been  a  fine  sur 
concessit,  it  had  revoked  only  pro  tanto. 

Yin.  Abr.  tit.  Devise,  (P),  pi.  10. 

If  A  devises  lands  to  B  and  his  heirs,  and  afterwards  mortgages  the 
same  lands  to  J  S  for  years,  or  in  fee,  though  a  mortgage  in  fee  be  a  total 
revocation  at  law,  yet  in  equity  it  shall  be  a  revocation  pro  tanto  only. 

1  Vera.  329,  342,  97,  141,  182 ;  1  Salk.  158,  S.  P. :  {3  Yes.  J.  085,  Earl  Temple  v. 
The  Duchess  of  Chandos  ;  5  Yes.  J.  050,  Baxter  v.  Dyer.  See  0  Yes.  J.  218,  219, 
221,222,223;  8  Yes.  J.  126.} 

||  And  a  devise  of  real  estate  is  not  revoked  as  to  the  surplus  by  the 
bankruptcy  of  the  testator. 
Charnian  v.  Charman,  14  Yes.  580. || 

{But  though  a  mortgage  in  fee,  or  a  conveyance  in  fee  for  payment  of 
debts,  is  only  a  revocation  pro  tanto,  yet  if  the  conveyance  operates  an 
alteration  of  the  estate  beyond  the  mere  purpose  of  securing  the  payment 
of  debts,  it  is  a  total  revocation. 

0  Yes.  J.  199,  Harmood  v.  Oglander ;  8  Yes.  J.  100,  S.  C.  { 

So,  if  a  man  seised  in  fee  devises  it  to  J  S  in  fee  or  for  life,  and  after- 
wards makes  a  lease  to  J  D  for  years,  this,  even  at  law,  shall  not  be  a 
revocation,  but  during  the  years ;  for  this  intent  does  not  appear  further 
than  during  the  term  for  years. 

1  Roll.  Abr.  GIG,  Montague  v.  Jeffries;  ||Yin.  tit.  Devise,  n.|| 

So,  if  a  husband  possessed  of  a  term  for  forty  years,  devises  it  to  his 
wife,  and  after  leases  the  land  to  another  for  twenty  years,  and  dies ; 
this  lease  is  not  any  revocation  of  the  whole  estate ;  but  only  during  the 
twenty  years,  and  the  wife  shall  have  the  residue  by  the  devise. 

1  Roll.  Abr.  G16,  Wilcox's  case. 

B  Where  a  testator,  after  having  made  his  will  by  which  he  devises  an 
estate  to  A,  grants  a  part  of  it,  the  will  attaches  pro  tanto,  and  carries 
it  to  the  devisee. 

Brush  v.  Brush,  11  Ohio,  287.tf 

But,  if  A  clevises  lands  to  B  and  his  heirs,  and  twelve  years  after  leases 
the  same  lands  to  B  for  sixty  years,  to  commence  after  his  death,  and 
delivers  the  deed  to  a  stranger,  to  the  use  of  B,  who  does  not  deliver  it  to 
B  till  after  the  death  of  A,  this  is  a  revocation  of  the  whole  estate ;  for 
both  estates  are  not  consistent  nor  can  vest  in  B  at  the  same  time  ;  and  it 

Vol.  X.— 71 


562       OF  WILLS  AND  TESTAMENTS. 

(II)  How  avoided.     {Revocation  hy  Changes  of  Estate,  dx.) 

was  plainly  the  intention  of  the  devisor,  that  B  should  have  the  less 
estate  only.  And  it  was  so  adjudged,  though  objected,  that  it  was  the 
intention  of  A  that  B  should  have  his  liberty  to  take  by  the  lease  or  de- 
vise, B  not  having  agreed  to  the  lease  in  the  life  of  A. 

1  Abr.  Eq.  Cas.  410. 

But,  if  the  lease  made  to  the  devisee  had  been  to  begin  either  in  prx- 
senti  or  futuro,  in  the  life  of  the  devisor,  it  had  not  been  a  revocation, 
for  inasmuch  as  the  lease  might  have  determined  in  his  life,  it  was  con- 
sistent with  his  will. 

Cro.  Ja.  49,  Coke  v.  Bullock.  ||See  Baxter  v.  Dyer,  5  Yes.  C5G.]| 
So,  where  A  by  will  devised  to  his  younger  son  a  certain  messuage  for 
ninety-nine  years,  if  three  lives  lived  so  long,  yielding  and  paying  to  his 
sister,  the  plaintiff,  20?.  per  annum  until  twelve  years  old,  and  thence  40?. 
per  annum  for  life  :  and  afterwards  the  said  A  for  300?.  fine  demised  the 
said  messuage  to  J  S  for  ninety-nine  years,  if  three  lives  lived  so  long, 
yielding  and  paying  50?.  per  ann um  to  A  the  testator,  his  heirs  and  assigns  : 
though  it  was  held  at  the  Bolls  to  be  a  revocation,  yet  on  an  appeal  to  my 
Lord  Keeper,  he  decreed  it  to  be  no  revocation,  and  that  the  daughter 
should  be  paid  her  annuity ;  and  he  said,  that  the  rule  is,  where  a  subse- 
quent act  shall  amount  to  a  revocation  by  implication,  it  must  be  a  neces- 
sary implication  :  and  the  act  must  be  wholly  inconsistent  with  the  devise. 

2  Vera.  495,  Lamb  v.  Parker  ;  2  Freem.  284,  S.  C,  says,  Ld.  Keeper  seemed  to  be 
of  opinion,  that  it  was  not  a  revocation,  because  the  three  lives  in  the  lease  might  die 
before  the  testator,  and  then  the  devise  would  take  place  ;  but  referred  it  to  the  judges 
of  B.  R.  by  way  of  a  case  to  determine. 

So,  wdtere  A  devised  lands  to  trustees  to  pay  his  debts,  and  then  to 

pay  his  wife  200?.  per  annum  for  her  life  ;  and  the  testator  living  several 

years  after,  his  debts  increased  from  2000?.  to  10,000?.,  for  8000?.  whereof 

his  said  trustees  were  bound,  and  afterwards  A  the  testator,  by  deed  and 

fine,  conveyed  his  lands  to  his  said  trustees  to  sell  to  pay  his  debts,  and 

the  surplus  to  him  and  his  heirs  :  though  the  wife  joined  with  him  in  the 

fine  and  conveyance,  yet  this  was  no  revocation  of  the  wife's  200?.  per 

annum,  and  she  was  decreed  the  200?.  per  annum  out  of  the  surplus 

money  after  the  debts  paid. 

2  Vera.  241,  Vernon  v.  Jones ;  2  Freem.  117,  S.  C,  says,  the  Lords  Commissioners 
Trevor,  Bavvlinson,  and  Hutchins,  were  of  opinion  that  the  surplus  being  to  his  invn 
right  heirs,  that  it  was  still  in  his  own  power,  and  should  be  subject  to  his  disposal  by 
the  will ;  and  the  case  of  Hall  and  Dench  was  cited,  where,  after  a  devise  of  lands, 
the  devisor  made  a  mortgage  in  fee  ;  and  adjudged,  that  the  devisee  should  have  the 

equity  of  redemption. Free,  in  Chanc.  32,  S.  C.  says,  the  lords  commissioners  held 

that  neither  the  mortgage  and  fine,  nor  deed  of  trust,  should  be  a  total  revocation  of 
the  will,  being  made  for  particular  purposes ;  but  that  after  debts  paid,  the  widow 
should  have  the  200Z.  per  annum. 

But  in  a  case  where  Edward  Earl  of  Lincoln  had  mortgaged  the  manor  • 
i  I'  S  to  the  defendant  Wynn  and  his  heirs  for  12,000?.,  and  afterwards,  hy 
liis  will,  in  default  of  issue  male  of  his  own  body,  devised  it  to  Sir  J  ran. 
Clinton  (who  was  to  succeed  him  in  the  honour)  for  his  life,  with  remain- 
der to  his  first  and  other  sons  in  tail-male,  with  other  remainders  over; 
and  appointed  that  his  household  goods  at  his  chief  house  at  S  should  re- 
main there  as  heir-looms  to  the  next  heir  male,  who  should  be  Earl  of  Lin- 
coln, and  made  Sir  Fran.  Clinton  executor :  afterwards  the  carl  (who  was  | 
xery  whimsical)  took  a  fancy  to  one  Mrs.  Calvert,  daughter  to  the  Lord 
Baltimore,  and  fancied  he  should  marry  her,  though  it  was  proved  in  the 


OF  WILLS  AND  TESTAMENTS.       563 

(II)  How  avoided.     [Revocation  by  Changes  of  Estate,  dec.) 

cause,  there  never  was  any  intention  of  such  marriage  in  her,  or  in  any  of 
her  relations,  nor  any  treaty  about  it ;  and  in  this  fancy  he  makes  a  lease 
and  release  of  those  premises  to  the  defendant  Davenport  and  Townshcnd, 
and  their  heirs,  (in  consideration  of  the  said  intended  marriage,  as  it  was 
expressed,)  to  the  use  of  himself  and  heirs,  till  the  said  intended  marriage 
took  effect :  then  as  to  part  in  trust  for  Mrs.  Calvert  and  her  heirs,  in  lieu 
of  dower,  and  as  to  the  rest  in  trust  that  the  trustees  should  sell  it,  to  dis- 
encumber that  part  limited  to  Mrs.  Calvert,  and  the  surplus  of  the  money 
to  his  executors  and  administrators.     There  was  no  farther  progress  to- 
wards the  marriage,  and  some  time  after  the  earl  died  without  any  alter- 
ation of  his  will,  and  the  honour  descended  to   Sir  Fran.  Clinton,  (who 
had  but  a  very  small  estate,  if  any,)  who  died  soon  after ;  and  the  plain- 
tiff, his  eldest  son  and  heir,  an  infant  of  about  seven  years  old,  brought 
his  bill  to  have  the  redemption  of  the  mortgage,  and  a  conveyance  of  the 
estate ;  and  the  defendants  A,  B,  and  C,  who  were  cousins  and  coheirs  of 
Earl  Edward,  brought  a  cross  bill,  that  they  might  redeem  and  have  the 
estate  conveyed  to  them.     And  the  only  question  was,  Whether  this  lease 
and  release  were  a  revocation  of  the  will?     It  was  said  for  the  plaintiff 
that  the  earl  had  but  an  equitable  interest,  the  whole  estate  being  before 
mortgaged  in  fee,  and  therefore  it  ought  to  be  considered  according  to 
equity ;  and  that  though  such  a  lease  and  release  would  have  been  a  re- 
vocation of  a  devise  of  a  legal  estate,  yet  it  will  not  be  so  here  ;  for  the 
reason  the  law  goes  upon  in  judging  it  a  revocation  is,  because  the  lease 
and  release  is  a  conveyance  of  the  estate,  and  so  ex  necessitate  rei  a  revo- 
cation of  the  devise :  and  it  is  plain  the  law  goes  upon  this,  and  not  upon 
any  supposed  alteration  in  the  person's  will.     For  if  a  man  makes  a  will, 
and  thereby  devises  lands  to  J  S  and  his  heirs,  and  afterwards  articles  to 
sell  the  lands  to  J  D  and  his  heirs,  and  receives  the  purchase-money,  and 
dies  before  any  conveyance  made,  these  articles  will  be  no  revocation  of 
Lis  will :  and  yet  it  is  as  plain  his  mind  and  intention,  as  to  those  lands, 
is  altered,  as  much  as  if  he  had  actually  made  a  conveyance  to  J  D,  and 
in  case  of  an  equitable  interest,  the  lease  and  release  makes  no  alteration 
of  the  estate,  so  as  to  induce  a  necessity  of  adjudging  it  a  revocation,  as 
there  is  in  case  of  a  legal  estate:   it  is  plain  as  to  his  intention,  that  he 
did  not  intend  any  revocation  or  alteration  of  his  will,  unless  or  until  that 
marriage  should  take  effect;  for  by  the  release  it  is  limited,  that  till  that 
marriage  it  should  continue  to  him  and  his  heirs,  which  is  just  as  it  was 
before  :  and  that  marriage  having  never  taken  effect,  the  estate  continues 
just  as  it  was.     And  it  cannot  be  pretended,  that  this  lease  and  release 
are  any  express  revocation  of  his  will ;   and  the  Court  of  Chancery  is  so 
far  from  following  the  strict  rules  of  legal  revocations,  that  it  often  relieves 
against  them.     And  therefore,  if  a  man  devises  Blac'kacre  to  J  S  and  his 
h.  -.;.-,  and  afterwards  mortgages  it  to  J  D  and  his  heirs,  this,  in  law,  is  a 
revocation  of  the  devise,  and  yet  in  equity  it  shall  be  none  farther  than 
to  let  in  the  mortgage ;  and  to  this  purpose  were  cited  several  cases.     And 
therefore,  since   the  court  of  equity  must  interpose  for  one  side  or  the 
other,  it  was  concluded  it  ought  to  interpose  for  the  present  earl,  and  that 
he  ought  to  have  the  redemption  of  the  estate,  as  devised  by  the  will  of 
'Earl  Edward.     For  the  defendant  it  was  said,  that  such  a  lease  and  release 
would  have  been  a  revocation  of  a  devise  of  a  legal  estate,  and  that  equi- 
table estates  are  governed  by  the  same  rules  that  legal  estates  arc ;  and 
there  is  no  fraud  or  circumvention,  nor  other  equitable  circumstances,  to 


564       OF  WILLS  AND  TESTAMENTS. 

(II)  How  avoided.     {Revocation  by  Changes  of  Estate,  dr.) 

make  the  court  vary  from  that  rule  in  this  case ;  and  the  will  is  in  disin- 
herison of  the  heir,  who  is  always  favoured  in  all  courts.  And  a3  to  the 
cases  put,  where  mortgages  have  been  held  to  be  no  revocation  in  equity, 
it  was  said,  the  reason  of  that  is,  because  mortgages  are  not  considered 
as  conveyances  of  the  estate,  but  only  charges  upon  it :  and  my  Lord 
Keeper  was  of  this  opinion,  and  decreed  the  plaintiff's  bill  to  be  dis- 
missed, and  the  coheirs  to  have  the  redemption  of  the  mortgage. 

1  Abr.  Eq.  Cas.  411  ;  2  Freem.  202.  Resolved,  it  was  a  revocation.  And  upon  an 
appeal,  so  held  in  Bom.  Proc.  by  a  majority  of  two  lords  only.  ["  This  court,"  mean- 
in"'  a  court  of  equity,  "  has  no  authority,  nor  has  ever  attempted  to  exercise  an  autho- 
rity, to  determine  that  revocations  of  wills  are  subject  here  to  different  rules  from  those 
that  would  govern  at  law."  By  Lord  Ch.  Loughborough,  2  Ves.  jun.  426.  "  With 
regard  to  all  the  doctrine  of  revocation  as  applied  to  legal  estates  in  courts  of  law, 
courts  of  equity  will  apply  the  same  doctrine  in  equity."  By  the  Master  of  the  Rolls, 
2  Ves.  jun.  598.] 

So,  where  Sir  John  Husband,  by  will  in  writing  dated  the  12th  of  Feb- 
ruary, 1708,  devised  several  pecuniary  and  specific  legacies,  and  then  gave 
all  the  rest  of  his  real  and  personal  estate,  after  all  his  debts  and  legacies 
paid,  to  John  Pollen,  on  condition  he  took  the  name  of  Husband  upon 
him,  and  the  heirs  male  of  his  body,  with  divers  remainders  over :  after- 
wards by  lease  and  release,  the  80th  of  August,  1709,  Sir  John  Husband, 
together  with  J  S  his  trustee,  conveyed  several  manors  and  lands  in  the 
county  of  Warwick  to  trustees,  and  their  heirs,  to  the  use  of  himself  for 
life,  without  impeachment  of  waste,  and  that  the  trustees  and  their  heirs 
should  execute  such  conveyance  arid  conveyances  thereof  as  the  said  Sir 
John  by  writing  under  his  hand  and  seal,  or  by  his  last  will  and  testa- 
ment, should  direct  or  appoint ;  and  in  1710  Sir  John  died,  without  alter- 
ing or  revoking  the  said  will,  or  making  any  other  appointment  touching 
the  said  real  estate:  the  question  was,  Whether  this  lease  and  release 
were  a  revocation  of  the  will  or  not ;  the  original  bill  of  Pollen  being  to 
establish  the  will,  and  the  cross  bill  to  set  aside  the  will,  and  have  an 
account  of  the  profits.  And  it  was  decreed,  that  the  lease  and  release 
were  a  revocation  of  the  will. 

1  Abr.  Eq.  Cas.  412,  Pollen  v.  Husband. 

!So  if  a  testator,  after  having  made  his  will,  levy  a  fine  to  such  uses 
as  he  shall  by  deed  or  will  appoint,  and  die  without  making  any  new 
will,  the  will  made  prior  to  the  line  is  revoked  thereby. 
5  Bos.  &  Pul.  401,  Doe  v.  Dilmot. 

A,  seised  in  fee  of  the  manors  of  Stamford,  &c,  and  also  of  the  manors 
of  Swinford  and  South  Kilworth,  entered  into  marriage  articles  by  which 
he  agreed  to  settle  his  estates  so  as  to  secure  his  intended  wife's 
jointure,  and  the  portions  of  younger  children,  and  to  settle  the 
Stamford  estate  upon  his  eldest  son  in  strict  settlement,  subject  to  part 
of  such  jointure  and  portions.  He  then  devised  all  the  estates,  in  case 
he  should  die  without  issue  and  subject  to  such  jointure  as  he  might 
make,  to  trustees  for  five  hundred  years,  upon  certain  trusts  expressed 
in  the  devise.  Afterwards  by  separate  deeds  of  lease  and  release,  he 
conveyed,  1st,  the  Stamford  estate  to  trustees  in  fee  to  the  use  of 
himself  in  fee  till  the  marriage,  with  divers  limitations  in  pursuance 
of  the  articles,  and  subject  to  a  term  of  five  hundred  years  for  securing 
pari  of  his  wife's  jointure,  remainder  to  himself  in  fee;  2dly,  The  Swin- 
t'oril  and  South  Kilworth  estate  to  trustees  in  fee,  to  the  use  of  himself  in 
fee  till  the  marriage,  and  after  that  to  the  use  and  intent  that  his  intended 


OF  WILLS  AND  TESTAMENTS.       565 

(II)  How  avoided.     (Revocation  by  Changes  of  Estate,  dx.) 

wife  should  take  the  other  part  of  her  jointure  thereout  if  she  survived 
him,  and  after  his  death,  remainder  to  trustees  for  five  hundred  years  to 
secure  such  jointure,  remainder  to  himself  in  fee.  He  afterwards  married, 
and  died  without  issue.  It  was  held  that  the  deeds  of  settlement,  whereby 
he  parted  with  the  whole  estates  devised,  operated  as  a  revocation  of  the 
will,  though  he  took  back  a  fee  by  the  same  instruments,  and  though  they 
were  consistent  with  the  provisions  of  the  will;  and  also  that  the  latter 
estate  was  not  excepted  from  this  revocation  by  the  circumstance  of  the 
conveyance  of  that  estate  to  the  trustees  being  merely  for  the  purpose  of 
creating  a  term  to  secure  the  wife's  jointure. 

2  Yes.  J.  G04,  n. ;  3  Ves.  J.  050;  4  Yes.  J.  850,  Cave  v.  Holford ;  1  Bus.  &  Pul. 
570  ;  7  Term,  399,  Goodtitle  v.  Otway.  Parol  evidence  of  an  intention  not  to  revoke 
was  rejected.,' 

A  having  issue  four  daughters,  and  no  male  issue,  devises  lands  to  trus- 
tees, in  trust  to  permit  his  daughter  S  to  receive  the  rents  and  profits  un- 
til her  marriage  or  death ;  and  in  case  she  married  with  the  consent  of 
two  of  the  trustees  and  her  mother,  then  to  convey  the  premises  to  her 
and  her  heirs ;  but,  if  she  died  before  marriage,  or  married  without  such 
consent,  then  to  convey  to  other  persons  :  afterwards  S  married  in  the  life- 
time of  her  father,  and  with  his  consent,  and  he  settled  part  of  those  lands 
on  her  and  her  husband,  and  died.  And  it  was  held,  that  this  settlement 
was  no  revocation  of  the  will,  as  to  the  devise  of  the  other  lands. 

2  Yern.  720,  Clarke  v.  Berkley. 

So,  J  S  having  four  daughters,  A,  B,  C,  and  D,  in  1705,  by  will  de- 
vises several  parcels  of  his  estate  severally  to  his  four  daughters,  and  inter 
alia  he  devises  to  trustees  all  his  lands,  tenements,  and  hereditaments  in  E 
and  F,  or  either  of  them,  or  near  thereto  adjoining,  in  trust  for  A  until  her 
marriage  or  death ;  and  in  case  she  married  with  the  consent  of  her  trus- 
tees, then  for  her  and  her  heirs,  or  for  such  person  as  she  should  appoint, 
&c.  But  in  case  she  married  without  consent  of  her  trustees,  and  forfeited 
her  estate,  then  to  her  other  sisters  equally  among  them,  &c.  In  1708  the 
plaintiff  Clarke  married  A  with  the  consent  of  J  S,  and  he  settles  upon  the 
marriage  (his  wife,  who  had  these  lands  in  jointure,  joining  with  him)  part 
of  these  lands  devised  to  her  by  his  will,  after  the  death  of  her  mother,  and 
also  11.  per  annum  in  fee-farm  rent,  which  was  doubtful  if  it  passed  by  the 
will  or  not.  In  1709  J  S  died  without  altering  his  will.  (Note,  J  S,  in  a 
letter  to  Clarke  upon  the  treaty  of  marriage,  declared  what  he  would  give 
him  with  his  daughter  in  present,  and  that  she  would  be  a  better  fortune 
at  his  death.)  Quere,  If  this  devise  to  A  in  fee,  upon  condition  of  mar- 
rying with  the  consent  of  trustees,  be  dispensed  with  or  performed  by 
her  marrying  in  J  S's  lifetime,  and  with  his  consent  ?  And  Cowper,  C. 
was  of  opinion,  that  by  the  marriage  with  the  consent  of  the  father,  the 
condition  is  dispensed  with,  and  the  devise  become  absolute. 

Yin.  Abr.  tit.  Devise  (U),  pi.  11 ;  Clarke  et  ux.  v.  Lucy  et  al.  For, per  Lord  Chan- 
cellor, conditions  of  this  kind,  be  the  conditions  precedent  or  subsequent,  arc  in  nature 
of  penalties  and  forfeitures  ;  and  if  the  substantial  part  and  intent  be  performed,  equity 
should  supply  small  defects,  and  favour  the  devisee  ;  and  his  lordship  observed,  that  it 
was  admitted  that  here  was  no  forfeiture  ;  and  said,  should  he  take  away  the  estate 
from  the  first  devisee,  when  it  cannot  go  to  the  devisee  over,  it  would  descend  to  heirs 
at  law,  which  certainly  was  never  the  intent  of  the  testator.  One  question  in  this  case 
was,  If  the  father  giving  and  settling,  upon  A's  marriage,  part  of  the  lands  devised 
to  her  by  the  will  precedent  to  the  marriage,  be  a  revocation  of  the  whole  devise  to  her, 
or  only  pro  tanto,  as  was  settled  on  her  upon  the  marriage?     And  Lord  Chancellor 

3B 


566      OF  WILLS  AND  TESTAMENTS. 

(H)  How  avoided.     [Revocation  brj  Changes  of  Estate,  &c.) 

held,  that  the  lands  settled  by  the  father,  upon  the  marriage  of  A,  is  a  revocation  only 
pro  tanto  of  the  lands  devised  to  her,  and  not  of  the  whole  devise;  for  implied  revo- 
cations ought  to  be  plain  and  certain,  and  the  inconsistency  most  apparent,  which  is 
not  so  in  this  case :  for  why  may  not  the  father  give  his  daughter  all  these  lands  at  his 
death,  though  it  was  not  proper  for  him  to  part  with  them  all  in  his  lifetime  ?  Though 
he  gave  part  by  deed,  why  may  he  not  give  her  the  rest  by  will  ?  Decreed  for  plain- 
tiff, the  wife,  for  all  the  lands  devised  to  her  by  will.  Ibid. ;  and  see  ante,  2  Vera. 
720.  Clarke  v.  Berkley,  &c. 

B,  in  1714,  by  lease  and  release,  conveyed  certain  estates  in  II  to  him- 
self for  life,  remainder  to  his  first  and  other  sons  in  tail,  remainder  to  B 
for  life,  remainder  to  his  first  and  other  sons  in  tail,  remainder  to  the 
right  heirs  of  B,  subject  to  a  power  of  revocation  by  any  deed  or  writing 
under  his  hand  and  seal,  &c,  so  as  that,  at  the  time  of  such  revocation, 
he  settled  other  land  in  Yorkshire  free  from  encumbrances  to  the  same 
uses.  B  afterwards  made  his  will  in  1729,  and  thereby,  among  other 
things,  devised  all  his  lands  in  Yorkshire  and  elsewhere  to  trustees  upon 
trusts  therein  mentioned.  Then  B,  in  1730,  by  lease  and  release,  in- 
tended by  him  as  an  execution  of  the  power  of  revocation  reserved  in  the 
former  deeds,  conveyed  a  distinct  estate  in  Yorkshire  to  the  uses  of  the 
former  settlement  in  1714,  but  this  estate  was  deficient  in  value  and  sub- 
ject to  a  term  for  securing  children's  fortunes,  and,  therefore,  the  settle- 
ment of  it  not  a  good  execution  of  the  power  reserved  in  the  former  deed. 
But  the  lease  and  release,  in  1730,  being  made  subsequent  to  the  will  of 
1729,  was  clearly  held  to  be  a  revocation  of  the  will  quoad  the  devise  of 
the  Yorkshire  estate,  as  part  of  all  the  testator's  lands,  &c,  in  Yorkshire 
mentioned  to  be  devised  by  the  will ;  and  that  estate  therefore  was  not 
subject  to  the  trusts  created  thereby. 

Burgoyne  v.  Fox,  1  Atk.  57G. 

So  where  a  man  by  his  Avill  gave  an  estate  in  fee  to  one  of  his  sisters, 
and  after  this  made  a  marriage  settlement,  wdierein  he  limited  the  estate  in 
strict  settlement,  remainder  to  his  own  right  heirs  ;  that  settlement  was 
held,  notwithstanding  the  remainder  was  limited  to  his  own  right  heirs, 
and  so  the  old  use,  to  be  a  revocation  of  the  whole  devise  to  the  sister. 

Martin  v.  Savage,  Barnard.  189  ;  S.  C.  cited  1  Yes.  440. 

Again,  it  was  held  by  Lord  Hardwicke,  in  the  case  of  Bennet  and  Wade, 
that  a  recovery  suffered  of  land  after  a  will  made,  gave  a  new  estate  therein 
to  the  tenant  to  the  praecipe,  although  the  limitations  were  to  the  old  uses  : 
and,  consequently,  that  a  will  thereof  made  previously  was  revoked  by  it. 

Bonnet  v.  Wade,  2  Atk.  325  ;   (5  Bos.  &  Pul.  491,  Doe  v.  Bishop  of  Landaff,  S.  P.} 

Again,  A,  being  under  his  marriage  settlement  tenant  for  life,  with  re- 
mainder to  trustees  to  preserve  contingent  remainders,  with  remainder  to 
his  first  and  other  sons  in  tail,  remainder  to  himself  in  fee,  made  his  will, 
and  thereby  devised  and  settled  estates  as  in  his  will  mentioned  ;  and  then, 
by  indenture  of  lease  and  release,  conveyed  the  same  hereditaments  to  B, 
his  heirs  and  assigns  for  ever,  and  afterwards,  by  another  indenture,  recit- 
ing the  foregoing  lease  and  release,  and  that  the  same  was  to  make  B  ten- 
ant  to  the  praecipe,  for  suffering  a  recovery,  the  uses  whereof  were  therein 
declared,  as  to  the  lands  in  question,  to  be  to  himself  and  his  heirs.  Then 
a  recovery  was  suffered,  after  which  A  the  testator  died  without  republish- 
ing his  will,  and  without  there  having  been  any  issue  of  the  marriage.  The 
question  was,  Whether  the  deeds  executed  and  the  recovery  suffered  were, 
under  the  circumstances  of  this  case,  a  revocation  of  the  will  ?    The  coun- 


OF  WILLS  AND    TESTAMENTS.       567 

(II)  How  avoided.     {Revocation  by  Changes  of  Estate,  &c.) 

sel  for  the  devisee  argued  that,  in  this  case,  the  deeds  and  recovery  did 
not  amount  to  a  revocation,  the  same  being  executed  and  suffered  by  A 
■without  any  intention  appearing  upon  the  state  of  the  case  to  alter  or  re- 
voke his  will ;  that  a  recovery  by  tenant  for  life,  remainder  to  trustees, 
&c,  was  a  nullity,  an  innocent  recovery,  and  in  this  case  nugatory ;  that 
A's  estate  for  life  was  not  devisable ;  that  all  he  could  devise  was  his  re- 
version or  remainder  in  fee,  and  that  thereof  he  could  not  suffer  a  recovery ; 
that  the  recovery  thereof  only  operated  on  his  life-estate,  which  amounted 
to  nothing.  But  the  Court  of  Common  Pleas  afterwards  certified,  that  the 
deeds  executed,  and  the  recovery  suffered,  were  a  revocation  of  the  will, 
but  did  not  give  their  reasons  for  this  decision.  But  the  ground  thereof 
seems  to  have  been,  that,  by  the  recovery,  A  drew  the  whole  interest  in  the 
land  to  himself,  and  got  one  entire  fee,  a  total  new  estate  in  fee  which 
could  not  be  defeated  but  by  the  entry  of  the  trustees  to  preserve  contin- 
gent remainders;  and  that  his  former  estate  for  life,  with  contingent  re- 
mainders, «fec,  and  remainder  over  in  fee,  were  all  gone,  until  the  trustees 
should  enter  for  the  forfeiture,  which  they  never  did :  so  that  A  died  seised 
of  an  estate  in  fee  in  possession  of  the  lands  comprised  in  the  settlement, 
which  was  a  different  estate  from  that  which  he  had  when  he  made  the  will. 
Darley  v.  Parley,  3  Wils.  6  ;  S.  C,  7  Bro.  P.  C.  177.]  ||Seo  Lord  Loughborough's 
remarks  in  Brydges  v.  The  Duchess  of  Chandos,  2  Ves.  jun.  430. || 

A  made  his  will,  and  thereof  his  brother  executor,  and  devised  unto 
his  executor  all  his  estate  both  real  and  personal,  and  four  years  after- 
wards he  marries,  and  then  by  a  codicil  makes  his  wife  his  executrix. 
And  the  question  was,  Whether  the  brother  should  have  the  personal  es- 
tate ?  And  it  was  urged  that  he  should ;  for  he  does  not  take  it  as  exe- 
cutor only,  but  by  express  words  of  gift  in  the  will,  and  it  appears  that 
there  was  not  only  a  benefit  intended  him  as  executor,  for  even  the  real 
estate  was  devised  to  him ;  but  it  being  in  proof  that  he  had  not  any  real 
estate  in  the  world,  it  was  said  by  my  Lord  Chancellor,  that  the  personal 
estate  was  designed  him  only  as  executor  :  and  it  was  thereupon  decreed 
for  the  widow,  the  executrix. 

2  Vern.  23,  Wilkinson  v. . 

An  alteration  of  circumstances  has  been  considered  as  an  implied  revo- 
cation.    Thus, 

J  S,  being  a  bachelor,  made  his  will,  and  devised  a  legacy  of  500/.  to 
his  brother,  and  other  legacies  to  other  persons,  and  devised  his  real  es- 
tate to  Eliz.  Close  and  her  heirs ;  and  afterwards  intermarried  with  the 
same  Eliz.  Close,  and  died,  leaving  her  privement  enseint  with  a  son, 
without  making  any  alteration  in  his  will ;  and  the  main  question  in  the 
case  was,  Whether  this  alteration  in  the  testator's  circumstances  did,  of 
itself,  without  more  ado,  amount  to  a  revocation  ?  Those  who  argued  for 
its  being  a  revocation,  relied  on  the  case  of  one  Ayres,(a)  in  which  it  was 
resolved  by  the  judges,  that  where  a  man  that  was  unmarried  made 
a  will  and  devised  away  his  estate,  and  afterwards  married  and  had  a 
child,  and  died  without  making  any  revocation  of  his  will,  this  alteration 
of  circumstances  was,  in  itself,  a  revocation  of  the  will.  And  a  case  was 
cited  out  of  Cicero,(7>)  where  one,  thinking  his  son  dead,  devised  his  estate 
to  another ;  yet  the  son  returning,  it  was  held  he  should  have  it,  because 
it  was  not  to  be  supposed  he  would  have  disinherited  him  without  reason. 
On  the  other  side  it  was  argued,  that  though  alteration  of  circumstances 
may,  in  some  cases,  amount  to  a  revocation  of  a  will,  jet  it  does  not  in 


568       OF  WILLS  AND  TESTAMENTS. 

(II)  How  avoided.     {Revocation  by  Marriage,  dr.) 

this  case ;  for  there  is  nothing  but  what  a  reasonable  man  might  do,  no- 
thing unjust  or  unjustifiable.  It  appeared  he  had  an  intention  of  marry- 
ing Eliz.  Close  when  he  made  his  will,  though  perhaps  he  might  not  know 
when  he  died  that  his  wife  was  eJiseint,  or  if  he  did,  yet  it  is  not  uncom- 
mon for  many  who  are  kind  to,  or  fond  of  their  wives,  to  leave  their, 
children  wholly  in  their  power,  to  make  them  the  more  dutiful  to  her,  and 
that  he  must  know  the  son  would  be  the  wife's  heir,  as  well  as  his ;  and 
would  have  the  estate  as  such,  if  she  did  not  dispose  of  it  from  him. 
Lord  Keeper  was  clearly  of  opinion,  that  alteration  of  circumstances 
might  be  a  revocation  of  a  Avill  of  lands  as  well  as  of  a  personal  estate ; 
and  that,  notwithstanding  the  statute  of  frauds  and  perjuries,  which  does 
not  extend  to  an  implied  revocation ;  but  no  such  alteration  appears  here, 
for  no  injury  is  done  any  person ;  for  those  are  provided  for,  whom  the 
testator  was  bound  to  provide  for,  and  so  establish  the  will. 

1  Abr.  Eq.  Cas.  413,  Brown  v.  Thompson,  1  P.  Wms.  304,  in  a  note :  this  reporter 
says,  that  this  case  was  heard  at  the  Bolls,  8  Dec.  1701,  where  Sir  John  Trevor  held, 
that  a  subsequent  marriage,  and  having  children,  was  a  revocation  of  a  will  of  land,  and 
dismissed  the  bill  of  the  legatees,  claiming  legacies  charged  on  the  estate  by  such  will. 
And  the  reporter  adds,  that  he  finds  in  the  registrar's  book,  that  Wright,  Lord  Keeper, 
in  July  following,  reversed  the  order  of  dismission,  and  decreed  the  payment  of  the 
legacies,  (a)  1  P.  Wms.  304,  S.  C.  cited  by  Sir  John  Trevor,  Master  of  the  Polls, 
and  appears  to  have  been  the  case  of  Eyre  v.  Eyre,  said  to  be  reported  to  Sir  John 
by  Treby,  C.  J.,  and  some  eminent  civilians.  Ibid,  in  a  note.  {1  Wash.  140,  Wilcox 
v.  Kootes,  S.  P.}  (6)  Vide  Cic.  do  Oratore,  Cantab,  ed.  p.  09,  102,  &c. ;  Dig.  L.  ult. 
de  IIa3red.  Inst.  [Upon  the  principle  which  the  Master  of  the  Polls  went  upon  in 
Brown  v.  Thompson,  it  was  decided  in  the  Exchequer,  upon  a  will  made  by  one  in  the 
lifetime  of  a  former  wife  who  died  without  issue,  whereupon  he  married  a  second  wife 
by  whom  he  had  issue ;  that  the  testator's  second  marriage,  and  having  issue  by  that 
marriage,  was  a  total  revocation  of  the  will  made  in  the  lifetime  of  the  first  wife. 
Christopher  v.  Christopher,  cited  in  4  Burr.  2182,  in  Scacc.  1771.  See  also  Welling- 
ton v.  Wellington,  4  Burr.  2171. — The  same  question  occurred  in  the  case  of  Spragge 
against  Stone.  In  this  case  there  were  two  wills.  The  first  will  was  made  in  Jamaica 
in  1704,  by  which  the  whole  estate,  real  and  personal,  was  devised  to  a  stranger.  The 
testator  married  in  1705,  and  had  issue  in  1760.  Afterwards,  on  the  10th  of  October, 
1700,  the  testator  made  another  will,  which  was  in  his  own  handwriting,  but  not  duly 
attested  according  to  the  statute  of  frauds,  by  which  he  devised  his  estate,  real  and  per- 
sonal, to  his  wife  in  trust  for  his  son.  It  had  been  decreed  in  the  Court  of  Chancery 
in  Jamaica,  that  the  marriage  and  birth  of  a  child,  and  the  second  will,  amounted  to 
a  revocation  as  to  the  personalty,  but  not  as  to  the  real  estate.  But  on  appeal  to  the 
privy  council,  (Parker,  Chief  Baron,  De  Grey,  Chief  Justice,  and  Sir  Eardly  Wilmot, 
being  present,)  the  decree  as  to  the  real  estate  was  reversed,  and  it  was  declared,  that 
the  subsequent  marriage  and  birth  of  a  child  were,  in  point  of  law,  an  implied  revoca- 
tion of  the  will  of  1704.  No  notice  was  taken  of  the  second  will  in  the  order  of  re- 
versal. Spragge  v.  Stone,  at  the  Cockpit,  £0th  March,  1773,  cited  in  Dougl.  35.] 
j  In  the  case  Ex  parte  the  Earl  of  Ilchester,  7  Ves.  J.  348,  300,  it  was  held  by  Lord 
Eldon,  assisted  by  Sir  AVm.  Grant  and  Lord  Alvanley,  that  a  second  marriage  and 
the  birth  of  children,  if  the  wife  and  children  were  provided  for  by  settlement,  and 
there  were  children  by  the  former  marriage,  was  a  case  of  exception  from  the  rule 
that  marriage  and  the  birth  of  a  child  revoke  a  will. —  Qua're  whether  the  birth  of 
more  children  subsequent  to  the  date  of  the  will,  and  then  the  testator's  second  mar- 
riage, bv  which  he  has  no  children,  are  a  revocation.  4  Ves.  J.  840,  Gibbons  v.  Count. } 
||See  Doe  v.  Lancashire,  5  Term  B.  49 ;  Ex  parte  Earl  of  Ilchester,  7  Ves.  348.|| 

{A  by  will  provided  an  annuity  for  B  with  whom  he  cohabited;  and 
directed  his  trustee  and  executor,  out  of  his  real  estate,  in  case  he  should 
have  any  child  or  children  by  B,  to  raise  3000Z.  to  be  paid  to  and  amongst 
his  said  children  ;  and  devised  the  remainder  of  his  estate  over  to  several 
of  his  relatives.    Afterwards  he  married  B  and  had  several  children  by  her. 


OF  WILLS  AND    TESTAMENTS.       569 

(II)  How  avoided.      [Revocation  by  Marriage,  d-c.) 

Such  subsequent  marriage  and  births  did  not  revoke  his  -will,  the  objects 
having  been  contemplated  and  provided  for. 
5  Ves.  J.  G63  ;  2  East,  530,  Kennobel  v.  Scrafton. } 

Though  marriage  and  the  having  of  children  has  been  deemed  a  revo- 
cation of  a  will,  yet  it  is  only  a  presumptive  revocation  ;  for  if  it  appears 
by  any  expression,  or  other  means,  to  be  the  intent  of  the  devisor,  that  his 
will  should  continue  in  force,  the  marriage  will  be  no  revocation  of  it. 

1  Ld.  Raym.  441,  Lugg  v.  Lugg;  ||2  Salk.  592,  S.  C.||  /3See  Coates  v.  Hughes, 
3  Binn.  498;  Tomlinson  v.  Tomlinson.  1  Ashm.  224.gf 

[Thus,  J  N  seised  in  fee,  inter  alia,  of  the  estates  in  question,  in  June, 
1770,  being  a  widower  without  children,  and  his  sister  A  being  his  heir  at 
law,  made  his  will  in  writing  duly  attested,  and  thereby  devised  the  same 
estates  to  trustees,  to  the  intent  that  the  chancellor,  master,  and  scholars 
of  the  University  of  Cambridge,  and  their  successors,  should  receive  an 
annuity  thereout  upon  trust  to  be  applied  as  directed,  in  a  book  covered 
with  marble  paper,  of  his  own  handwriting,  &c,  by  the  will  referred  to ; 
and  subject  to  and  chargeable  with  the  said  annuity,  and  the  powers  and 
remedies  for  recoverv  thereof,  in  trust  for  his  own  right  heirs  and  assigns 
for  ever.  The  ivill  did  not  contain  any  devise  of  any  other  part  of  the  testa- 
tor s  real  estate.  After  making  this  will  the  testator  married ;  but  previous 
to  the  marriage,  and  after  making  the  will,  he  conveyed  certain  lands,  of 
the  annual  value  of  12301.,  to  trustees  for  the  purpose  of  securing  to  his 
intended  wife  a  clear  yearly  sum  of  800?.  in  case  there  should  be  no  son 
of  the  marriage,  and  6001.  if  there  should  be  a  son,  by  way  of  jointure  and 
in  bar  of  dower,  with  remainder  to  himself  in  fee.  The  estates  devised  by 
the  will  were  not  comprised  in  this  conveyance.  The  testator  had  issue 
of  the  said  marriage  one  daughter.  After  her  birth,  he,  continuing  seised 
as  aforesaid,  subscribed  his  name  to  another  paper-writing  in  the  presence 
of  three  witnesses,  who,  at  his  request,  subscribed  their  names  thereto  in 
his  presence  and  in  the  presence  of  each  other,  the  effect  of  which  was  as 
follows:  viz.,  "Memorandum  of  what  J  N  said  in  the  presence  of  A,  B, 
and  C  on  the day  of ,  that  as  his  will  was  made  before  he  mar- 
ried a  second  time,  he  had  there  devised  his  estate  to  his  heir  male  ;"  and 
then,  after  mentioning  other  circumstances,  it  states,  "  that  he  also  particu- 
larly devises,  that  the  college  gift  may  be  paid  and  disposed  as  he  has  in 
the  said  will  directed.  The  parchment  book  respecting  the  college  gift  is 
to  stand.  Mr.  B  had  instructions  for  this  and  drew  it  up."  But,  before 
the  signing  of  this  paper  by  J  N,  he  struck  out  this  latter  part  of  the  me- 
morandum by  drawing  his  pen  across  it,  saying  to  the  person  who  reduced 
it  into  writing,  "  You  may  draio  your  pen  through  what  you  have  new 
written,  for  there  is  a  parchment  book  with  the  will  in  the  hands  of  B 
that  mentions  all  about  it."  Soon  after  this  the  testator  died.  And  one 
question  Avas,  Whether  this  will,  and  the  devise  therein  to  the  charity, 
was  revoked  by  the  subsequent  marriage  and  birth  of  a  child  ?  And  it 
was  held  that  it  was  not;  for  a  subsequent  marriage  and  birth  of  a  child 
affording  a  mere  presumption,  which  in  this  case,  as  in  every  other,  might 
be  rebutted  by  every  J1}  sort  of  evidence,  the  declaration  of  the  testator, 
as  to  drawing  the  pen  through  the  latter  part  of  the  instrument  last 
executed,  and  referring  to  his  will  as  a  subsisting  instrument,  was  decisive 
evidence  to  rebut  the  presumption,  that  the  change  of  his  circumstances 
furnished  an  intent  to  revoke. 

Brady  v.  Cubitt,  Dougl.  31.     {i  j  Vide  4  Ves.  J.  848 ;  5  Ves.  J".  GG4  ;  2  East,  530.  j 

Vol.  X.— 72  3  b  2 


570      OF  WILLS  AND  TESTAMENTS. 

(II)  How  avoided.     {Revocation  by  Marriage,  <£c.) 

But  it  does  not  seem  that  either  of  these  circumstances,  viz.,  marriage 
and  the  having  of  children,  would  singly  suffice  to  raise  the  presumption 
of  an  intended  revocation. 

A  testator  having  made  his  will,  after  some  small  legacies  to  his  collatei  al 
relations,  constituted  his  wife  residuary  legatee.  After  the  making  of  the 
will,  viz.,  in  17G3,  his  wife  was  brought  to  bed  of  a  daughter,  upon 
whose  birth  the  testator  added  a  codicil,  whereby  he  directed  that  the 
legacies  should  be  paid,  and  that  an  annuity  of  300£.  per  annum  should 
be  secured  on  the  residuum  and  paid  to  his  daughter.  The  codicil  and 
will  were  found  together.  In  1765  another  daughter  was  born,  and  in 
1768  a  son,  who  was  a  posthumous  child,  the  testator  being  dead  about 
six  months  before  his  birth.  And  the  question,  on  a  case  sent  out  of 
Chancery  by  Lord  Camden  for  the  opinion  of  Sir  George  Hay,  was, 
Whether  the  subsequent  birth  of  children  was  a  revocation  of  this  will  ? 
And  it  was  determined,  that  the  subsequent  birth  of  children,  even  in 
case  of  personalty,  did  not  amount  to  a  revocation. 

Shepherd  v.  Shepherd,  Dougl.  38,  note  (10).] 

||  But  it  is  now  settled  that  marriage,  and  the  birth  of  a  posthumous  child, 
are  facts  which  impliedly  revoke  a  will  of  lands  made  before  marriage. 
And  Lord  Kenyon,  in  expounding  the  rule,  and  referring  to  the  civil  law, 
from  whence  it  is  taken,  said,  that  it  did  not  so  much  depend  on  the  pre- 
sumption of  intention  to  revoke  as  on  a  tacit  condition  annexed  by  legal 
construction  to  the  will,  that  in  such  an  event  the  will  should  not  stand. 

Doe  v.  Lancashire,  5  Term  R.  49. 

But  where  the  testator  had  married  and  had  children  before  the  will,  and 
afterwards  made  a  will,  and  then  married  again,  and  had  children  by  the 
second  marriage,  who  were  provided  for  by  settlement,  this  was  held  an 
exception  to  the  rule  in  question,  and  the  will  was  held  not  revoked. 

Ex  parte  Earl  of  Uchester,  7  Ves.  348. 

It  is  settled,  that  the  revocation  only  takes  place  where  the  children 
of  the  second  marriage  are  unprovided  for. 
Kennebel  v.  Scrafton,  2  East,  530. 

And  the  birth  of  a  posthumous  child  alone  is  not  a  revocation,  though 

the  testator  die  without  leaving  children,  and  do  not  know  of  his  wife's 

pregnancy,  the  court  not  choosing  to  go  beyond  the  principle  of  Doe  v. 

Lancashire. 

Doe  v.  Barford,  4  Maule  and  S.  10;  Shepherd  v.  Shepherd,  5  Term  R.  51,  n.  Whe- 
ther the  marriage  alone  of  a  woman  is  sufficient  to  revoke  her  will,  see  Forse  v. 
Hembling,  4  Rep.  Gl  a,  and  jwst.  /3ln  Pennsylvania,  the  birth  of  a  child  is,  of  itself, 
sufficient  to  revoke  the  will  so  far  as  respects  the  share  or  proportion  of  the  estate  of 
such  child's  father.     M'Knight  v.  Read,  1  Whart.  213. £j 

And  where  two  unmarried  sisters,  under  twenty-one,  had  made  mutual 
wills  in  each  other's  favour,  and  one  married,  it  was  held  no  revocation 
of  the  will  of  the  other. 

Hinckley  v.  Simmonds,  4  Ves.  1G0. 

j3  A  feme  sole  makes  a  will,  marries,  and  survives  her  husband ;  the 
will  is  valid. 

Wood  v.  Bullock,  3  Hawks,  298.0 

And  where  the  testator,  being  a  widower,  having  a  son  and  two  daugh- 
ters, by  will  gave  all  his  real  and  personal  estate  in  trust  for  those  children, 
and  in  case  of  their  deaths,  over,  and  while  they  were  living  married  again 


OF  WILLS  AND   TESTAMENTS.      571 

(II)  How  avoided.     (Revocation  by  Marriage,  &c.) 

and  had  a  daughter,  it  was  held  by  Sir  W.  Grant,  that  the  second  marriage 
and  birth  of  the  daughter  was  no  revocation  of  the  will.  In  all  the  cases, 
the  effect  of  the  revocation  had  been  to  let  in  an  after-born  heir  to  an  estate 
disposed  of  by  will  before  his  birth.  The  condition  implied  in  those  cases 
was,  that  the  testator,  when  he  made  his  will  in  favour  of  a  stranger  or 
remote  relation,  intended  that  it  should  not  operate  if  he  should  have  an 
heir  of  his  own  body.  In  this  case  there  was,  he  said,  no  room  for  the 
operation  of  such  a  condition,  as  the  testator  had  children  at  the  date  of  the 
will,  of  whom  one  was  his  heir  apparent,  who  was  alive  at  the  time  of  the 
second  marriage,  of  the  birth  of  the  children  by  that  marriage,  and  of  the 
testator's  death ;  upon  no  rational  principle,  therefore,  could  the  testator 
be  supposed  to  have  intended  to  revoke  his  will  on  account  of  the  birth  of 
other  children,  those  children  not  deriving  any  benefit  whatever  from  the 
revocation,  which  would  have  operated  only  to  let  in  the  eldest  son  to  the 
whole  of  that  estate  which  ho  had  by  the  will  divided  between  that  eldest 
son  and  the  other  children  of  the  first  marriage.  In  this  case  the  Ecclesi- 
astical Court  had  decided  that  the  will  was  revoked  as  to  personal  estate. 

Sheath  v.  York,  1  Ves.  &  B.  300. 

Before  the  doctrine  was  settled  as  to  real  estate,  it  had  been  settled 
by  the  Ecclesiastical  Courts,  with  the  concurrence  of  the  common-la w 
judges,  sitting  in  the  Court  of  Delegates,  that  marriage  and  the  birth  of 
a  child  would  amount  to  a  revocation  of  a  will  of  personal  property ;  and 
even  the  implication  arising  by  marriage  and  birth  of  children  may  give 
way  to  circumstances. 

Forse  v.  Ilembling,  4  Rep.  61  a,  and  post,  580. 

Thus,  where  a  man  made  his  will,  and  thereby  bequeathed  legacies,  and 
appointed  his  wife  residuary  legatee,  his  wife  died,  and  the  testator  married 
again,  and  had  one  child  by  the  second  wife.  He  afterwards  embarked 
with  his  second  wife  and  her  son,  and  all  the  children  of  the  first  marriage. 
The  ship  in  which  they  embarked  was  never  afterwards  heard  of,  and  was 
admitted  to  be  lost.  After  a  full  and  ingenious  argument  on  both  sides, 
Sir  William  Wynne  delivered  the  judgment  of  the  Ecclesiastical  Court, 
holding,  that,  under  the  special  circumstances  of  the  case,  there  was  no 
ground  on  which  to  presume  a  revocation  of  the  will. 

Wright  v.  Netherwood,  Salk.  R.  (Evans's  edit.) ;  2  Rob.  on  Wills,  117. 

In  a  late  case  in  the  Ecclesiastical  Court  it  was  held,  that  the  birth  of 
children  alone  may,  in  certain  circumstances,  be  sufficient  to  ground  a 
presumption  of  revocation  ;  Sir  John  Nicholl  saying,  he  could  not  help 
thinking  that  the  concurrence  of  marriage  was  not  an  essential  part,  and 
that  the  birth  of  children,  after  the  making  of  a  will  by  a  married  man, 
may  have  imposed  as  strong  a  moral  duty  upon  him,  forming  the  ground- 
work of  presumed  intention,  and  may  be  accompanied  by  circumstances 
for  making  as  indisputable  proof  of  real  intention,  as  if  the  will  had  been 
made  previous  to  the  marriage. 

Johnson  v.  Johnson,  1  Phill.  R.  477  ;  and  see  Ilollway  v.  Clarke,  1  Phill.  R.  341 ; 
Gibbons  v.  Count,  4  Ves.  848. 

And  a  second  marriage  and  birth  of  a  child  have  been  held,  in  the 
same  court,  a  revocation  of  the  will  of  a  widower,  notwithstanding  the 
child  died  in  the  lifetime  of  the  testator. 

Emerson  v.  Boville,  1  Phill.  342.|| 

[A  being  at  variance  with  his  wife,  by  his  will,  made  in  1739,  and  exe- 


572       OF   WILLS   AND    TESTAMENTS. 

(II)  How  avoided.     [Revocation  by  Changes  of  Estate,  d*c.) 

cnted  at  a  tavern,  gave  all  his  estate,  real  and  personal,  to  his  brother, 
and  made  him  executor.  And  in  1740,  A,  by  a  deed  poll,  gave  and 
granted  to  his  wife  all  his  substance  which  he  then  had  or  might  there- 
after have.  The  question  was,  Whether  this  will  was  revoked  by  the 
deed  poll  ?  Et  per  Lord  Chancellor,  The  latter  instrument  cannot  take 
effect  as  a  grant  or  deed  of  gift  to  the  wife ;  because  the  law  will  not  per- 
mit a  man  to  make  a  grant  or  conveyance  to  his  wife  in  his  lifetime, 
neither  will  a  court  of  equity  suffer  the  wife  to  have  the  whole  of  the  hus- 
band's estate  while  he  is  living ;  for  it  is  not  in  the  nature  of  a  provision, 
which  is  all  the  wife  is  entitled  to.  But  then,  another  consideration  re- 
mains, viz.,  though  it  cannot  take  effect  as  a  grant  to  the  wife,  yet,  whe- 
ther it  be  not  an  act  so  inconsistent  and  repugnant  to  the  will,  that  it 
may,  though  an  act  not  strictly  legal,  amount  to  a  revocation  ?  And  his 
lordship  said,  that  he  was  of  opinion  it  was,  and  declared,  that  the  will 
was  revoked  as  to  all  the  personal  estate  by  the  deed  poll. 

Beard  v.  Beard,  3  Atk.  72.  ||  These  imperfect  instruments  arc  revocations,  not  on 
the  ground  of  indicating  an  intention  to  revoke,  but  because  they  import  an  inten- 
tion of  altering  the  condition  of  the  estate,  which  the  law  holds  to  be  an  act  of  revo- 
cation. See  per  Lord  Ilardwicke,  Ambl.  216 ;  2  Atk.  598;  7  Term  11.  41G.||  Note. 
The  deed  poll  only  extended  to  personal  estate. 

||  Where  a  tenant  to  the  prcecipc  is  made  for  the  purpose  of  suffering  a 
recovery,  and  no  other  proceedings  are  had,  a  previous  will  is  neverthe- 
less revoked. 

Harmood  v.  Oglander,  C  Yes.  199. 

WThether  a  deed,  intended  to  operate  as  an  appointment  to  uses,  but 

incapable  of  operating  as  a  valid  appointment  from  a  deficiency  of  power 

in  the  party  executing  the  deed,  or  a  neglect  of  some  formality  necessary 

in  its  execution,  may  still  have  effect  as  a  revocation  of  a  will,  does  not 

seem  clearly  settled ;  though  Lord  Kenyon,  in  one  case  where  the  point 

was  not  adjudicated,  thought  the  deed  was  a  revocation. 

Shove  v.  Pinck,  5  Term  R.  124,  310 ;  and  see  Lord  Alvanley's  observations,  7  Ves. 
374,  where  it  was  decided  that  a  testamentary  appointment  of  a  guardian  was  not  re- 
voked by  a  subsequent  testamentary  appointment  not  executed  according  to  the  statute 
and  not  strictly  importing  revocation  ;  ||  and  see  Eilbeck  v.  Wood,  1  Russell,  564.  || 

The  testatrix,  b}^  will  duly  executed,  devised  all  her  freehold  property 
to  trustees  for  the  use  of  B,  and  seven  days  after  executing  the  will,  she 
conveyed  a  part  of  her  property  to  trustees  for  a  charitable  foundation, 
pursuant  to  the  statute  of  mortmain,  9  G.  2,  c.  36,  and  nine  days  after- 
wards she  made  a  codicil,  attested  by  three  witnesses,  to  be  taken  as  part 
of  her  will ;  by  which  codicil  she  appointed  another  trustee,  and  ordered 
her  money  out  on  mortgage  to  be  first  applied  in  payment  of  her  debts. 
The  testatrix  died  within  twelve  months  after  the  deed  was  executed  pur- 
suant to  the  statute.  The  third  section  of  the  statute  provides,  that  no 
lands  shall  be  given  for  charitable  uses,  unless  by  deed  executed  before 
two  witnesses,  twelve  months  before  the  death  of  the  donor.  The  court 
held,  that  the  will  was  not  revoked  by  the  indenture. 

.Matthews  v.  Venables,  2  Bing.  R.  136. 

Where  a  deed  is  void  as  being  covinously  made,  it  seems  clearly  held 
to  be  incapable  of  operating  as  a  revocation  for  its  complete  nullity ;  and 
in  a  court  of  equity,  a  deed  obtained  by  fraud  or  compulsion,  has,  in  a  case 
before  Lord  Thurlow,  been  held  equally  inoperative  against  a  subsisting  will. 
IJis  lordship  observed,  that  the  reason  against  admitting  such  an  instrument 


OF  WILLS  AND  TESTAMENTS.      573 

(II)  How  avoided.     [Revocation  by  Changes  of  Estate,  d'r.) 

to  have  the  effect  of  a  revocation  was  strong  in  that  court,  since,  .when 
aj  plication  is  made  by  a  proper  party,  it  will  be  ordered  to  be  delivered 
up,  and  then  it  is  implicitly  declared  to  be  no  need. 
Uawcs  v.  Wyatt,  3  Bro.  C.  C.  15G;  and  see  7  Ves.  348  ;  G  Vos.  215.  || 

M  made  her  will,  and  thereby  devised  a  messuage  in  L,  to  her  sister 
for  life,  and  after  her  decease  to  trustees  to  sell  the  same,  and  to  apply 
100?.,  part  of  the  produce  thereof,  to  A,  and  other  parts  to  other  persons, 
and  gave  the  residue  to  C.  After  the  making  of  the  will,  the  testatrix 
sold  the  estate  for  2500?.,  part  of  which  was  left  on  mortgage  of  the  estate, 
and  the  remainder  laid  out  in  the  purchase  of  stock.  Then  the  testatrix 
died  without  republishing  the  will ;  and  the  question  was,  Whether  this 
sale  was  a  revocation  of  the  will  ?  And  it  was  held  that  it  was,  for  there 
was  an  absolute  disposition  made  by  the  will,  and,  before  that  could  take 
effect,  another  absolute  disposition  inconsistent  with  it. 

Arnold  v.  Arnold,  1  Bro.  Ch.  R.  401.] 

A  devise  was  made  of  a  term  carved  out  of  an  inheritance  for  ninety- 
nine  years,  before  the  statute  of  3  &  4  W.  k  M.  c.  14,  of  fraudulent  de- 
vises, in  trust  to  pay  14?.  per  annum  to  a  grand-daughter  for  life  ;  and 
after  the  making  of  this  will,  the  devisor  mortgaged  this  land  for  live 
hundred  years  (which  is  a  revocation  in  law  for  the  term,  but  the  devisee 
has  an  equity  to  redeem  the  mortgage ;,  the  mortgagee  assigns  over  the 
mortgage  to  the  plaintiff,  who  was  a  creditor  by  bond  to  the  testator,  and 
the  reversion  in  fee  descended  to  the  testator's  heir  at  law.  Per  Cowper, 
Chancellor, — The  mortgage  is  a  revocation  pro  tanto  of  the  devise  of  the 
annuity,  and  she  must  keep  down  the  interest,  or  pay  a  third  part  of  the 
redemption  ;  but  being  a  devisee,  she  may  redeem  the  mortgage  without 
paying  the  bond. 

Yin.  Abr.  tit.  Devise  (Y),  pi.  2,  Saunders  v.  Hawkins. 

A  devises  lands  to  an  executor  for  payment  of  debts,  and  recites  that 
a  particular  schedule  of  them  was  annexed  to  the  will,  remainder  over. 
Afterwards  he  mortgages  part  of  the  said  lands,  and  pays  most  of  the 
schedule  debts  with  the  money.  And  it  was  decreed,  that  this  mortgage 
is  not  a  revocation,  either  in  all  or  part,  and  that  the  will  ought  to  ex- 
tend to  all  the  debts  that  should  be  owing  at  the  time  of  his  death,  and 
not  to  the  schedule  debts  only  ;  and  that  the  mortgage  was  only  a  security, 
and  not  an  appointment  how  it  should  be  made.  But  this  decree  was 
reversed,  though  without  prejudice  to  the  heir  at  law. 

Yin.  Abr.  tit.  Devise  (11),  G,  pi.  25,  Bernardiston  v.  Carter. 

If  lands  are  devised  to  one  in  fee,  and  afterwards  mortgaged  to  the  same 
devisee,  it  is  a  revocation  in  toto,  being  inconsistent  with  the  devise ; 
though  it  was  agreed,  if  the  mortgage  had  been  to  a  stranger,  it  had  been 
a  revocation  quoad  the  mortgage  only.*    Decreed  per  Lord  Macclesfield. 

Tree,  in  Chan.  514,  Harkness  v.  Bayley  ;  {5  Yes.  J.  G5G,  Baxter  v.  Dyer,_expressly 
conird,  and  this  ease  said  to  be  totally  misreported.  Ibid.  GG4,  Peach  v.  Phillips,  also 
contra.}  \\  But  sec  Lord  Eldon's  note  of  this  case,  5  Yes.  6G1,  from  which  it  appears 
the  transaction  was  not  a  mortgage,  and  the  conveyance  was  clearly  inconsistent  with 
the  devise  ;  and  Lord  Eldon  accordingly,  in  Baxter  v.  Dyer,  5  Yes.  G5G,  held,  that  a 
mortgage  to  the  devisee  was  not  a  revocation  of  the  devise.|| 

J  S,  by  his  will,  gives  his  daughter  500?.  for  her  portion,  and  afterwards 
marries  her  to  A,  and  gives  her  300?.  for  her  portion  in  marriage,  and 
lived  four  years  after,  without  revoking  his  will.    Afterwards  the  husband 


574      OF  WILLS  AND    TESTAMENTS. 

(II)  How  avoided.     {Revocation  by  Changes  of  Estate,  cf-c.) 

is  a  bankrupt,  and  the  assignees  brought  a  bill  against  the  father's  executor 
for  the  500/.,  or  at  least  to  recover  200/.  to  make  up  the  portion  tantamount 
to  the  500/.  legacy.  Lord  Chancellor  Parker  with  great  clearness  held, 
that  giving  a  daughter  a  portion  by  will,  and  afterwards  a  portion  in  mar- 
riage, is  by  the  law  of  all  other  nations,  as  well  as  Great  Britain,  a  revoca- 
tion of  the  portion  given  by  the  will ;  and  dismissed  the  bill  with  costs. 

1  P.  "Wms.  G81,  Hartop  v.  Whitmore  ;  Prec.  in  Chan.  541,  S.  C,  states  it  thus: 
J  S  by  will  gave  30.07.  portion  to  M  his  daughter,  if  she  married  with  her  mothers 
consent,  but  if  not,  then  200/.  only  ;  M  afterwards,  in  the  lifetime  of  her  father  and 
mother,  married  without  the  consent  of  either  of  them,  but  the  father  was  afterwards 
prevailed  on  to  give  her  200/.  and  died  without  altering  his  will.  M's  husband  after- 
wards becoming  a  bankrupt,  his  assignees  brought  a  bill  to  have  the  300/.,  or  at  least 
the  200/.  given  M  by  her  father's  will ;  but  the  bill  was  dismissed,  for  that  the  200/. 
given  by  the  father  in  his  lifetime  was  a  satisfaction  of  the  legacy,  and  a  revocation  of 
the  will  as  to  that  portion  ;  and  the  300/.  was  to  take  place  on  her  marrying  with  her 
mother's  consent,  which  could  only  be  intended  after  the  father's  death,  and  conse- 
quently the  legacy  never  became  due  at  all.     [Vide  supra  Legacies  (D).J 

Testatrix  having  three  daughters,  A,  E,  and  M,  by  will  devised  1000/. 
to  A,  800/.  to  E,  and  500/.  to  M.  After  this  will  was  made,  plaintiff 
courted  A,  and  upon  a  treaty  of  marriage,  testatrix  gave  a  note  for  500/. 
payable  within  six  months  after  the  marriage  to  plaintiff,  in  augmentation 
of  her  daughter's  portion  left  by  her  father ;  and  the  next  day  the  mar- 
riage wTas  had ;  and  upon  the  same  day  the  testatrix  AYas  taken  ill,  and 
died  six  days  after,  without  altering  or  making  a  new  will :  but  she  de- 
clared, that  she  intended  that  her  daughter  A  should  have  but  1000/. 
from  her,  and  that  now  since  she  had  given  her  this  500/.  she  must  alter 
her  will ;  and  sent  for  an  attorney  to  do  it;  but  when  he  came  she  was 
light-headed,  and  died  soon  after.  And  it  was  said  by  the  defendants, 
the  executors,  that  the  testator's  assets  were  not  sufficient  to  pay  the 
plaintiff  the  500/.  upon  the  note,  and  the  1000/.  legacy,  and  likewise  the 
legacy  left  to  the  other  two  daughters.  And  two  points  were  made  :  first, 
If  this  500/.  note  shall  be  taken  in  part  of  satisfaction  of  the  1000/.  lega- 
cy? Secondly,  If  parol  evidence  shall  be  admitted  to  prove  the  intent 
of  the  testatrix  ?  And  per  Lord  Chancellor  Parker, — The  circumstances 
of  testatrix  and  her  family  may  be  given  in  evidence  to  expound  the  will, 
but  not  any  parol  declarations  to  explain  the  words  of  the  will,  or  to  con- 
trol it ;  that  in  this  case  there  is  no  doubt  upon  the  words  of  the  will ; 
but  the  question  is,  If  the  testatrix  has  not  advanced  part  of  the  legacy 
in  her  lifetime  upon  the  marriage  of  her  daughter  ?  And  the  evidence 
is  only  as  to  the  satisfaction ;  and  thereupon  his  lordship  admitted  the 
evidence  to  be  read;  and  directed  the  Master  to  see  if  there  were  assets 
sufficient  to  pay  all  the  legacies  ;  and  upon  report,  the  court  to  determine 
as  to  the  quantum  due  to  the  plaintiff. 

Yin.  Abr.  tit.  Devise  (Y),  2,  pi.  10,  Pepper  ct  ux.  v.  Winyeve  et  ux. 

J  S  devised  to  M  his  wife  six  houses  in  bar  of  dower,  and,  subject  to 
his  legacies,  he  devised  (the  rest  of)  his  real  and  personal  estate  to  his  two 
daughters  and  their  heirs,  in  moieties ;  and  afterwards,  in  consideration 
of  the  marriage  of  A  his  eldest  daughter  with  B,  J  S  by  marriage  articles 
covenanted  to  settle  one  moiety  of  his  real  estate  to  the  use  of  himself  for 
life,  remainder  to  the  use  of  the  said  B  and  A  his  intended  wife  for  their 
lives,  remainder  to  the  younger  children  of  the  marriage  in  tail  general, 
remainder  to  the  said  B  in  fee ;  and  also  covenanted  that  he  would  stand 
possessed  of  one  moiety  of  all  such  personal  estate  as  he  should  leave  at 


OF  WILLS  AND  TESTAMENTS.       575 

(II)  How  avoided.     [Revocation  by  Changes  of  Estate,  dr.) 

his  death  (subject  only  to  his  debts,  and  such  legacies  as  should  amount  to 
5000/.)  in  trust  for  B  and  his  said  intended  wife  for  their  lives,  and  after- 
wards to  be  paid  to  their  younger  children.  Lord  Chancellor  King  held, 
that  though  this  was  but  a  covenant,  and  therefore  at  law  no  revocation  of 
the  will  by  which  the  testator  had  disposed  of  his  real  estate,  yet  that  the 
same  being  for  a  valuable  consideration,  was  in  equity  tantamount  to  a 
conveyance,  and,  consequently,  in  equity  a  revocation  of  the  will  as  to  the 
moiety  of  the  six  houses  devised  to  the  testator's  wife,  so  that  B  was  entitled 
to  one  clear  moiety  of  the  real  estate,  and  to  an  account  of  the  rents,  &c, 
thereof,  from  J  S's  death  ;  but  as  to  the  six  houses  devised  to  the  testator's 
wife,  it  being  his  intent  that  she  should  have  them,  the  court  held,  that  she 
should  have  a  satisfaction  out  of  the  remaining  moiety,  and  that  the  wife 
should  not  suffer  by  the  marriage-articles,  there  being  enough  out  of  the 
other  moiety  to  supply  and  satisfy  the  devise  of  the  six  houses  to  her. 
Therefore,  as  to  the  other  moiety  of  the  real  estate,  it  was  decreed,  that  the 
testator's  widow  was  to  have  for  her  life  six  houses,  part  thereof,  and 
the  residue  of  such  moiety  subject  to  the  wife's  estate  for  life  in  the  six 
houses  to  be  divided  between  the  two  daughters  equally. 

2  P.  Wnis.  328,  Rider  v.  Wager.  And  his  lordship  thought  this  case  the  stronger, 
because,  after  the  marriage-articles  entered  into  J  S  had  executed  a  codicil,  confirm- 
ing his  will  subject  to  the  articles,  which  confirmation  was  a  republication  of  his  will, 
and  as  if  he  had  written  it  over  again,  or  had  afterward  for  a  valuable  consideration 
assigned  over  a  moiety  of  his  real  and  personal  estate  to  his  eldest  daughter,  by  which 
the  said  moiety  thus  disposed  of  did  no  longer  continue  any  part  of  the  said  J  S's 
estate ;  so  that  the  testator  afterward,  by  devising  a  moiety  of  his  real  and  personal 
estate,  must  be  intended  to  have  meant  the  remaining  moiety  only,  and  to  have 
divided  that  moiety  into  moieties.  Ibid.  334-.  Note.  After  the  making  of  the  will 
and  codicil,  the  testator  and  his  wife,  by  lease  and  release  and  fine,  mortgaged  the 
premises  ;  and  it  was  urged  that  this  was  a  revocation  of  the  will ;  but  per  Lord 
Chancellor, — It  can  only  be  a  revocation  pro  tanto.  Ibid.  334.  |j  See  post,  578,  and 
0  Yes.  G54,  Yawser  v.  Jeffery;  10  Yes.  519.  || 

J  S  on  his  marriage  with  F's  daughter  settled  5001.  per  ann.  on  her ;  he 
afterwards  surrendered  some  copyhold  estates  to  the  use  of  his  will  which 
lie  made,  and  gave  the  copyhold  to  his  wife.  Afterwards  J  S,  on  the 
death  of  his  wife's  father,  became  entitled  to  1500/.  in  right  of  his  wife ; 
then  J  S  levied  a  fine,  and  made  a  new  settlement,  and  increased  her  join- 
ture 300/.  per  ann.,  but  never  altered  his  will.  And  per  Lord  Chancellor, 
— The  settlement  is  a  revocation  of  the  will,  for  such  lands  as  are  com- 
prised in  it ;  but  the  copyhold  is  not,  and  therefore  passes  by  the  will. 

Select  Cases  in  Chanc.  48,  Lannoy  v.  Lannoy. 

J  S,  in  1699,  leaves  to  A  8784?.  in  trust,  to  be  by  her  invested  in 
lands,  and  to  settle  the  same  on  herself  for  life,  remainder  to  the  heirs 
of  B.  A  decree  was  had  against  A  to  lay  out  the  money  in  hinds,  and 
to  settle  the  same  according  to  J  S's  will.  A  purchases  lands  to  the 
value  of  3300/.,  and  devises  those  lands  to  C  (who  was  heir  at  law  to  B) 
and  her  heirs,  and  gives  several  legacies,  which  could  not  be  paid  if  the 
devise  were  not  to  be  taken  as  part  of  satisfaction ;  and  for  that  reason 
it  was  so  decreed  by  Lord  Chancellor  King. 

Select  Oases  in  Chanc.  03,  Gibson  v.  Scudamoro. 

A  and  B  were  tenants  in  common  of  lands  in  fee.  A  by  will  dated  25th 
Jan.,  1719,  devises  her  moiety  of  the  said  lands  unto  trustees  and  their 
heirs,  upon  trust  to  sell  the  same  for  the  purposes  therein  mentioned ;  and 
afterwards  A  and  B  made  partition  by  deed,  dated  16th  May,  1722,  and  a 
fine  was  levied,  and  the  uses  were  declared  to  be,  as  to  one  moiety  in  seve- 


576       OF  WILLS  AND  TESTAMENTS. 

(II)  How  .avoided.     [Revocation  by  Ctianges  of  Estate,  dc.) 

ralty  to  A  in  fee,  and  as  to  the  other  moiety  in  severalty  to  B  in  fee.  In 
1724  A  died  without  revoking  or  altering  her  said  will,  leaving  J  S  her 
only  son.  Lord  Chancellor  declared,  that  the  will  was  well  proved,  but 
referred  it  to  the  judges  of  B.  R.,  "Whether  the  deed  of  16th  May,  1722,  and 
the  fine  levied  pursuant  thereto,  was  not  a  revocation  of  the  will  ?  And 
Raymond,  C.  J.,  Rage,  Probyn,  and  Lee,  Justices,  certified  their  opinions 
to  be,  that  the  will  was  not  revoked  by  this  deed  and  fine,  and  that  A's 
share  of  the  land  contained  in  this  deed  and  fine  passed  by  the  will. 

Vin.  Abr.  tit.  Devise  (It),  6,  pi.  30;  Luther  v.  Kirby,  3  P.  Wms.  1G9,  by  way  of 
note  cites  S.  C.  by  the  name  of  Luther  v.  Kidby,  and  says,  the  judge's  certificate 
appears  to  be  so  by  the  registrar's  book ;  with  which  Lord  Chanc.  King  concurred, 
and  ordered  that  the  several  trusts  in  A's  will  should  bo  established.  [So,  Swift  v. 
Iloberts,  3  Burr.  1490;  Bridges  v.  Duchess  of  Chandois,  2  Ves.  jun.  429.]  It  is 
added  in  P.  AVm.'s  report,  that  if  A  devises  lands  and  levies  a  fine,  and  the  caption 
and  deed  of  uses  are  before  the  will,  but  the  writ  of  covenant  is  returnable  after  the 
will,  this  seems  a  revocation ;  because  a  fine  operates  as  such  from  the  return  of  the 

writ  of  covenant,  and  not  from  the  caption. See  Salk.  341.     Lloyd  and  the  Lord 

of  Say  and  Seale  ;  and  yet  this  is  a  hard  case,  since  by  the  caption  the  party  conusor 
does  all  his  part,  and  the  rest  is  only  the  act  of  the  clerk  or  his  attorney,  without  any 
particular  instructions  from  the  party, 

[But,  if  the  conveyance,  by  which  a  partition  is  made,  be  for  any  other 
purpose  except  merely  that  of  partition,  though  it  be  nothing  more  than 
conveying  the  estate  to  such  uses  as  the  party  may  appoint,  it  will  operate 
as  a  revocation  of  a  will  previously  made. 

{7  Ves.  J.  5G4 ;  8  Ves.  J.  281 ;  10  Ves.  J.  25G,  2G4.} 

Thus,  where  T  died  in  1741,  seised  in  fee  of  lands  which  were  gavelkind, 
leaving  two  sons  R  and  H,  who  both  entered  therein  upon  their  father's 
death,  and  were  each  seised  of  an  undivided  moiety  thereof;  and,  they 
being  so  seised,  R  made  his  will,  and  devised  all  his  lands  and  tenements 
and  all  his  moiety  to  his  wife :  afterwards  a  deed  of  partition  was  made  and 
executed  by  and  between  R  and  H,  and  the  lands  in  question  were  allotted 
to  R,  and  it  was  covenanted  therein,  that  they  and  their  wives  should  all 
join  in  levying  a  fine,  (which  was  done,)  and  that  the  same,  as  to  the  lands 
in  question,  should  enure  to  the  use  of  R  and  such  person  and  persons, 
and  for  such  estate  and  estates,  as  he  should,  by  deed  or  will,  limit,  direct, 
or  appoint ;  and,  in  default  of  such  appointment,  to  the  use  of  R  in  fee: 
Lord  Chief  Justice  Lee  held  this  to  be  clearly  a  revocation  of  the  will, 
and  not  like  the  case  of  a  bare  partition  only  unattended  by  a  fine  or  con- 
veyance to  a  new  use,  wdiich  would  not  have  been  a  revocation. 

Tickner  v.  Tickner,  cited  1  Wils.  309,  and  3  Atk.  742,  745,  750.  So,  Brydges  v. 
Duchess  of  Chandois,  2  Ves.  jun.  429.  [j  Lord  Eluon  has  observed  upon  these  cases 
of  Luther  v.  Kidby,  and  Tickner  v.  Tickner,  that  "mere  partition,  whether  by  com- 
pulsion or  agreement,  is  not  a  revocation  of  a  will ;  but  the  slightest  addition  as  a 
power  of  appointment  prior  to  the  limitation  of  the  uses  is  sufficient."  Knolleys  v. 
Alcock,  7  Ves.  5G4.  And  again  : — "  The  case  of  partition  is  a  sort  of  special  case. 
Each  party  can  compel  the  other  to  make  partition  ;  the  estate  is  the  same,  though 
enjoyed  afterwards  in  a  different  quality  and  in  another  mode.  And  upon  a  principle 
compounded  a  little  of  these  two  reasons,  it  has  been  held  that  that  which  can  be  com- 
pelled, if  dine  voluntarily,  and  provided  nothing  more  is  done  than  mere  partition, 
.shall  not  revoke  the  will.  I  say,  provided  nothing  more  is  done:  for  it  has  been  long  es- 
tablished, that  if  the  object  is  to  do  anything  beyond  the  partition,  it  will  be  a  revoca- 
tion. It  is  tried  by  the  fact,  whether  the  arts  demonstrate  any  intention  to  go  beyond 
the  mere  partition;  and,  notwithstanding  the  expressions  of  the  judges  in  some  of  the 
reports,  that  Luther  v.  Kidby  and  Tickner  v.  Tickner  cannot  stand  together,  they  have 
stood  together  a  considerable  time,  and  in  my  opinion  are  perfectly  reconcilable."  At- 
torney-General v.  Vigors,  8  Ves.  281;  and  see  Maundrell  v.  Maundrcll,  10  Ves.  25G.|| 

{And  if  the  partition  is  of  such  a  nature  as  to  deprive  the  testator  of  all 


OF   WILLS   AND    TESTAMENTS.      577 

(II)  How  avoided.     [Revocation  by  Changes  of  Estate,  <Cr.) 

interest  in  the  land  described  in  the  will,  it  will  be  a  revocation.  Thus  if 
F  and  P  are  coparceners  of  estates  in  the  counties  of  B,  L  and  0,  and 
F  devises  all  his  real  estates  in  the  counties  of  L  and  0,  and  afterwards 
partition  is  made,  by  which  the  estates  in  the  county  of  B  are  allotted 
to  F,  and  those  in  the  counties  of  L  and  0  to  P,  the  will  is  revoked :  nor 
has  the  devisee  any  right  to  compensation  from  the  heir. 
5  Vcs.  J.  648,  Knollys  v.  Alcock ;  7  Ves.  J.  558,  S.  C. 

An  exchange  revokes  a  previous  devise,  though  the  land  after  the 
death  of  the  devisor  be  restored  to  his  heir,  under  an  arrangement  made 
in  consequence  of  a  defect  discovered  in  the  title  of  the  other  party  to 
the  exchange. 

8  Ves.  J.  256,  278,  Attorney-General  v.  Vigor.}      ' 

By  marriage  articles  it  was  agreed,  that  the  wife's  lands,  whereof  she 
was  seised  in  tail,  should  be  conveyed  to  the  husband  in  fee :  they  mar- 
ried :  the  husband  made  his  will  and  devised  these  lands :  then  the  hus- 
band and  wife  suffered  a  recovery  of  these  lands,  to  such  uses,  and  for 
such  estates,  as  they  should  jointly  appoint,  and  in  default  of  such  ap- 
pointment to  the  use  of  the  husband  and  his  heirs.  She  died  without 
appointing.  Per  Hardwicke,  Ch. — This  amounts  to  a  revocation  of  the 
will.     And  in  this  case  the  following  rules  were  laid  down. 

MS.  Rep.  Parsons  v.  Freeman,  M.  25  G.  2 ;  [3  Atk.  741,  S.  C;  Ainbl.  116,  S.  C. ; 
1  Wms.  341,  S.  C.  The  introductory  part  of  this  argument  is  thus  stated  by  Lord 
Loughborough  in  2  Ves.  jun.  431,  from  my  Lord  Hardwieke's  notes: — "It  is  admitted, 
that  if  the  testator  had  been  seised  in  fee  at  the  date  of  the  will,  and  had  afterwards 
suffered  a  recovery,  that  would  be  a  revocation  ;  and  yet  the  objection  would  have  held 
equally  there  of  the  alteration  being  made  only  for  the  particular  purpose  of  enabling 
him  and  his  wife  to  dispose  without  any  other  form  of  conveyance.  There  are  a  great 
variety  of  cases,  and  nice  and  artificial  distinctions,  upon  the  favour  to  the  heir.  One 
rule,  however,  is  certain  ;  that  if  a  man  is  seised  in  fee,  and  disposes  by  will,  and  after- 
wards makes  a  conveyance,  taking  back  a  new  estate,  that  is  a  revocation ;  so,  if  he 
devises  the  land,  and  levies  a  fine  without  any  use  declared,  this  is  a  revocation,  and 
yet  he  takes  back  the  old  use  unaltered,  which  is  a  prodigiously  strong  case.  But 
these  cases  admit  of  limitations  and  distinctions  ;  and  therefore  if  a  testator  makes  a 
conveyance  for  life  or  years,  that  being  a  particular,  partial  purpose,  no  more  than  will 
answer  that  purpose  is  revoked;  the  line  being  drawn,  and  the  purpose  specified  with 
a  declared  intent  of  going  thus  far  and  no  farther.  These  are  the  rules  of  law :  the 
counsel  have  doubted  whether  they  extend  to  equitable  interest,  without  citing  autho- 
rities ;  but  I  think  they  hold  in  equity,  and  am  of  opinion  that  what  is  a  revocation  at 
law  shall  hold  in  equity ;  as  it  would  be  very  mischievous,  that  the  same  sort  of  con- 
veyance should  not  be  a  revocation  in  both  cases.  Therefore,  if  a  man  having  an  equi  • 
table  estate  makes  his  will,  and  then  executes  a  conveyance,  and  disposes  of  it,  or  de- 
clares the  uses  to  himself,  that  will  be  a  revocation,  if  it  would  be  so  of  a  legal  estate  at 
law.  But  still  this  revocation  follows  the  rule  of  law ;  and  therefore  if  the  conveyance  be 
of  part  only,  and  for  a  particular, partial  purpose,  it  shall  be  a  revocation  pro  tanto  only 
Upon  this  principle  is  Vernon  v.  Jones ;  so,  Ogle  v.  Cooke,  that  where  the  conveyance 
amounts  only  to  a  security,  it  is  only  a  charge  upon  the  land,  and  no  revocation  ;  and 
as  the  heir  may  in  all  those  cases  have  the  surplus,  so  shall  the  devisee."  ||Where  a 
testator  seised  in  fee  of  an  estate,  devised  it,  and  after  making  his  will,  conveyed  it,  by 
way  of  mortgage,  to  trustees,  with  a  proviso  in  the  deed,  that  on  payment  of  tlie  money, 
the  mortgagees  should  reconvey  to  him,  his  heirs,  and  assigns,  or  to  such  persons  as 
he  should  appoint  by  deed  in  writing,  it  was  held,  the  conveyance  was  only  a  revoca- 
tion of  the  will  pro  tanto,  notwithstanding  the  trust  to  convey  to  such  persons  as  the 
mortgagor  should  appoint ;  for  this  provision  gave  no  new  power  of  conveyance  to  the 
testator.  Brain  v.  Brain,  6  Madd.  221 ;  sed  vide  Ward  v.  Moore,  4  Madd.  'MS.  But 
where  a  man  devised  an  estate  of  which  he  was  equitably  seised,  under  a  contract  to 
purchase  it,  and  the  estate  was  afterwards  conveyed  to  trustees  to  such  uses  as  the  de- 
visor should  appoint  by  deed,  with  two  witnesses,  or  will,  with  remainder  to  the  trustee 
for  the  life  of  the  devisor,  to  bar  dower,  and  to  the  devisor  in  fee,  the  will  was  held  to 
be  revoked  by  the  conveyance.     Rawlins  v.  Burges,  2  Ves.  &  B.  382.11 

Vol.  X.— 73  3  G 


578       OF  WILLS  AND  TESTAMENTS. 

(H)  How  avoided.     (Revocation  by  Changes  of  Estate,  &c.) 

If  a  man  seised  in  fee  devises,  and  then  makes  a  conveyance  by  fine, 
feoffment,  or  recovery,  and  takes  back  a  new  estate,  it  is  certainly  a  revo- 
cation ;  and  so  if  he  takes  back  the  old  use  unaltered,  from  a  presumption 
that  he  could  not  have  made  such  a  conveyance  without  an  intention  to  alter 
his  will :  but  if  after  making  his  will  he  had  made  a  lease,  or  charged  it 
with  a  sum  of  money,  &c,  it  would  only  have  been  a  revocation  pro  tanto. 
The  rules  are  the  same  in  the  devise  of  a  real,  and  of  a  personal  estate, 
with  regard  to  charges  made  afterward :  but  if  a  man,  having  an  equi- 
table estate  in  fee,  devises  it,  and  then  takes  a  conveyance  of  the  legal 
estate,  it  is  no  revocation.  The  equitable  estate  will  not  pass  by  will,  but 
the  heir  at  law  by  descent  of  the  legal  estate  may  become  a  trustee  for  the 
devisee,  who  may  call  for  a  conveyance  of  the  estate.  If  a  man  contracts 
by  articles  for  the  purchase  of  lands,  and,  before  a  conveyance,  devises  the 
lands  and  dies  ;  the  devisee  shall  have  the  lands  and  call  for  a  conveyance 
from  the  vendor.  If  a  man,  seised  of  a  legal  estate,  makes  his  will,  and 
then  conveys  the  legal  estate  to  another  in  trust  for  himself,  it  is  a  revo- 
cation. If  in  this  case  the  husband  had  only  taken  the  legal  estate  by  the 
recovery  to  execute  it  into  the  equitable  estate,  it  would  have  been  no 
revocation ;  but  new  uses  are  appointed,  and  though  the  wife  died  without 
making  any  appointment,  that  will  not  alter  the  case,  for  here  he  took 
the  fee  by  the  recovery  differently  qualified,  subject  to  different  condi- 
tions, differently  conveyed.  But,  if  two  parceners  make  partition,  levy 
a  fine,  and  declare  the  use,  that  will  not  be  a  revocation,  because  it  is  to 
effectuate  the  partition. 

||  If  the  owner  of  an  unqualified  equitable  fee  devise  it  by  his  will,  and 
afterwards  takes  a  conveyance  of  the  unqualified  Jegal  fee,  this  is  no 
revocation  of  the  will,  because  the  conveyance  was  incident  to  the  equi- 
table fee.  But  if  he  afterwards  takes  a  qualified  conveyance  of  the  legal 
fee  for  the  purpose  of  preventing  dower,  it  is  a  revocation  of  the  will, 
being  a  change  in  the  quality  of  the  estate  and  not  incident  to  the  equi- 
table fee.  1 1 

Ward  v.  Moore,  4  Madd.  368 ;  ||and  see  p.  577.|| 

[S  in  1733  surrendered  copyhold  tenements  to  the  use  of  T  and  B  his 
wife,  for  their  lives,  remainder  to  the  heirs  and  assigns  of  T,  and  they  were 
accordingly  admitted ;  and  then  T  surrendered  to  the  use  of  his  will.  B 
died,  leaving  issue  by  T — G  the  eldest,  and  I  the  youngest  son.  In  1744, 
T  the  father  surrendered  these  tenements  to  the  intent  that  the  lord  should 
regrant  them  to  the  use  of  T  and  his  heirs  until  his  marriage  with  S,  and 
then  to  the  use  of  T  and  S  for  their  respective  lives,  remainder  to  the  heirs 
of  their  two  bodies,  remainder  to  the  right  heirs  of^  T.  No  admission  was 
had  by  T  under  this  surrender.  Afterwards,  viz.,  in  1757,  T  devised  the 
estates  to  S  his  wife  for  life,  remainder  to  I  his  youngest  son,  and  M  his 
wife,  for  their  respective  lives,  and  died,  leaving  S  his  widow,  and  G  his 
eldest  son  and  heir.  In  1759,  S  was  admitted  for  her  life  on  the  former 
surrender  made  on  her  marriage,  and  then  G  the  son  was  admitted  to  the 
reversion  expectant  on  her  decease.  I,  the  youngest  son,  died:  then  S  the 
tenant  fur  life  died.  Afterwards  M,  the  widow  of  I,  was  admitted  by  virtue 
of  the  will  of  T  and  the  surrender  to  the  use  thereof.  The  question  was, 
Whether  by  the  subsequent  acts,  the  surrender  to  the  use  of  the  will  was 
at  an  end  ?  It  was  argued  that,  by  the  surrender  in  1744,  every  thing 
passed  out  of  T  the  devisor,  consequently  there  was  an  end  of  the  surrender 
to  the  use  of  his  will  in  1733 ;  and,  he  never  having  been  admitted,  nor 
of  course  surrendered  to  the  use  of  his  will,  in  consequence  of  the  new 


OF  WILLS  AND  TESTAMENTS.      579 

(H)  How  avoided.     {Revocation  by  Changes  of  Estate,  dx.) 

limitation  in  1744,  nothing  passed  by  the  will  of  1757.     Sed  per  curiam, 

unanimously, — The  old  use  in  fee  granted  to  T  in  1733,  to  -which  he  was 

then  admitted,  and  which  was  surrendered  to  the  use  of  his  will,  was  not 

taken  out  of  him  by  the  new  limitation  and  surrender  of  1744.     He  had 

therefore  no  occasion  to  be  re-admitted  to  it  for  the  purpose  of  surrendering 

to  the  use  of  his  will,  but  shall  be  construed  to  be  in  of  his  old  estate. 

Thrustout  on  the  dem.  of  Gower  v.  Cunningham,  2  Black.  R.  1046.1    ||  See  Vawser 
v.  Jeffery,  3  Barn.  &  A.  468 ;  2  Swanst.  268.  || 

A  being  seised  in  fee,  settled  his  estate  by  lease  and  release  in  1712,  to 
the  uses  thereinafter  specified,  with  liberty,  nevertheless,  at  his  will  and 
pleasure,  to  dispose  of,  alienate,  or  change  the  said  estate,  or  any  part 
thereof,  for  any  estate  or  estates  whatsoever,  as  he  should  think  fit,  and 
to  revoke  all  and  every  the  uses  thereby  limited ;  and  then  declares  the 
uses  to  himself  for  life,  with  several  remainders,  and  a  remainder  over  to 
D  in  (fee)  tail.  The  said  deed  contained  the  following  powers :  first,  a 
power  for  A  by  any  deed  or  writing,  signed,  sealed,  and  delivered  in  the 
presence  of  two  or  more  witnesses,  to  demise,  lease,  limit,  or  appoint  the 
said  premises  to  any  person  whatsoever,  for  any  term  or  terms  whatsoever, 
and  for  so  much  yearly  rent  as  he  should  think  fit.  And  that  it  shall 
and  may  be  lawful  to  and  for  the  said  A  at  any  time  during  his  natural 
life,  at  his  will  and  pleasure,  to  grant,  sell,  or  demise  the  said  premises,  or 
any  part  thereof,  or  by  any  deed  or  writing  under  his  hand  and  seal,  or 
by  his  last  will,  &c,  in  writing,  signed,  sealed,  delivered,  and  published 
in  the  presence  of  three  or  more  witnesses,  to  revoke,  repeal,  and  make 
void  all  and  every  or  any  the  use  and  uses,  estate  and  estates,  trusts,  and 
limitations  before  raised,  and  to  declare  or  limit  the  same,  or  such  new 
uses  as  should  seem  most  meet  to  him,  and  then  and  from  thenceforth,  the 
estates  before  limited  and  so  revoked,  to  cease,  &c. :  and  that  the  said  A 
may  dispose  of  the  same  premises,  and  every  part  thereof,  to  such  other 
person  and  uses  as  he  shall  think  fit ;  any  thing,  &c,  to  the  contrary  not- 
withstanding. The  first  part  of  this  proviso,  viz.,  "  to  grant,  sell,  or  de- 
mise," appears  inserted  by  interlineation.  In  1715,  A  by  lease  and  re- 
lease, reciting  that  he  was  indebted  as  specified  in  a  schedule  annexed, 
conveyed  his  estate  to  W  R  and  W  S  and  their  heirs,  in  trust  to  pay  the 
said  debts  by  the  annual  profits,  or  mortgage  or  sale  of  the  premises,  ami 
after  payment  thereof,  to  pay  the  overplus,  if  any,  and  reconvey  such  parts 
of  the  premises  as  should  remain  unsold,  to  the  said  A,  or  to  such  person 
and  persons,  and  to  such  uses,  &c,  as  A  by  any  deed  or  writing,  under 
his  hand  and  seal,  attested  by  two  or  more  credible  witnesses,  should 
limit,  &c.  This  release  was  attested  by  two  witnesses  only.  A  died 
without  issue.  Lord  Chancellor,  assisted  by  Lord  Chief  Baron  Reynolds 
and  the  Master  of  the  Rolls,  was  of  opinion,  that  A  intended  to  reserve 
an  absolute  power  over  this  estate,  and  either  to  revoke  it  by  an  express  re- 
vocation, or  by  a  conveyance  to  different  uses,  which  are  the  two  kinds  of 
revocation,  as  is  evident  as  well  from  the  preamble,  which  is  interwoven 
with  the  consideration  of  the  deed,  as  from  the  proviso :  and  in  consequence 
of  that  intention,  it  is  reasonable  to  suppose  he  meant  to  have  a  power  to 
defeat  it,  without  taking  any  notice  of  it ;  and  if  no  power  had  been  reserved 
in  the  body  of  the  deed,  then  would  the  preamble  have  given  a  general 
power.  That  a  conveyance  to  different  uses  would  have  been  a  revoca- 
tion as  effectual  as  an  express  revocation,  and  that  he  thought  any  other 
construction  would  be  forced  and  unnatural.  That  if  A  had  stepped  with 
the  first  words  of  the  proviso,  viz.,  "to  grant,  sell,  or  demise,"  he  had 


580       OF  WILLS  AND  TESTAMENTS. 

(H)  How  avoided.     {Revocation  by  Marriage,  dec.) 

reserved  an  absolute  power.  Then  come  the  words,  "  or  by  any  deed  or 
writing."  Or  is  plainly  a  disjunctive  introductory  of  a  different  sentence, 
and  a  different  power,  which  is  plain  by  the  words  immediately  following, 
viz.,  "And  then  the  uses  so  revoked  and  repealed,"  which  refer  to  the 
express  power  of  revocation.  That  if  the  second  part  of  the  clause,  "or 
by  any  deed  or  writing,"  &c,  had  been  dropped,  and  it  had  been,  "or  to 
repeal,"  &c,  it  is  plain  they  would  be  distinct  powers :  and  his  lordship 
asked,  Why  those  words  should  alter  the  case  ?  that  the  circumstance  of 
three  witnesses  is  only  applicable  to  the  express  revocation  ;  but  it  neither 
goes  to  the  first  power,  nor  to  the  general  power  of  disposing  at  the  end  of 
the  clause,  viz.,  "And  that  the  said  A  shall  and  may  dispose,"  &c,  which 
is  as  much  a  distinct  power  as  can  be,  and  is  larger  than  the  first ;  for  by  this 
he  might  give  his  estate  (tail)  by  will.  That  the  express  power  of  revoca- 
tion could  not  by  this  construction  be  thought  nugatory,  for  within  the  first 
power  he  could  not  be  reinstated  in  his  former  estate  without  a  conveyance 
and  reconveyance ;  nor  could  he  have  devised  it.  But  admitting  it  to  be 
so,  he  thought  general  intention  is  not  to  be  superseded,  because  a  subse- 
quent part  of  the  deed  is  surplusage :  and  that  the  whole  legal  estate 
passed  to  the  trustees  by  the  deed  of  1715.     Decreed  12  June,  1730. 

Lill.  Prac.  Conv.  390, 400,  Fitzgerald  v.  Lord  Fauconberge  ;  Fitzgibb.  R.  207,  S.  C. ; 
and  as  to  the  interlineation,  the  Lord  Ch.  said,  that  the  party  that  put  it  in  thought  it 
would  be  of  some  use  or  other,  and  it  could  be  of  no  use  but  to  give  A  an  unlimited 
power  over  the  estate  ;  and  as  A's  intention  was  to  reserve  such  a  power,  his  lord- 
ship said  he  would  not  abridge  it.     Ibid.  223. 

Though  a  covenant  or  articles  do  not  at  law  revoke  a  will,  yet  if  entered 
into  for  a  valuable  consideration,  amounting  in  equity  to  a  conveyance,(a) 
they  must  consequently  be  an  equitable  revocation  of  a  will,  or  of  any 
writing  in  nature  thereof.  A  woman's  marriage  is  alone  a  revocation  of 
her  will.  (5) 

2  P.  Wms.  624,  Cotter  v.  Layer,  (a)  See  S.  P.  resolved  in  the  case  of  Sir  Barn- 
ham  Ryder  and  Sir  Charles  Wager,  Ibid.  332.  ||  Bennett  v.  Tankerville,  19  Ves.  170.  || 
(6)  See  4  Rep.  61.  [But  if  the  husband  die  in  the  lifetime  of  the  wife,  then  the  will, 
it  seems,  will  revive,  and  on  her  death  afterwards  take  effect  as  if  no  marriage  had 
intervened.  Therefore,  saith  Serjt.  Manwood  in  Brett  v.  Rigden,  Plowd.  343,  a,  if  a 
feme  sole  make  her  will  the  1st  day  of  May,  and  give  land  thereby,  and  afterwards, 
the  10th  day  of  May,  she  take  husband,  who  dies  the  20th  day  of  May,  and  afterwards 
the  woman  die  the  30th  day  of  May,  the  devise  is  good;  for  it  does  not  take  effect  uutil 
her  death,  at  which  time  she  was  discovert,  as  she  was  at  the  time  of  making  the  will. 
— And  it  is  observable,  that  the  case  of  Forse  v.  Hembling,  4  Rep.  61,  wherein  it  was 
adjudged,  that  the  will  of  a  feme  sole  was  revoked  by  marriage,  does  not  seem  to  im- 
peach the  case  here  put,  for  the  reason  given  ;  for  that  judgment  is  not  only  because 
she  afterwards  married,  but  also  because  she  was  covert  baron  at  the  time  of  her  death. 
And  it  is  to  be  noted,  that  it  is  only  upon  the  authority  of  Forse  v.  Hembling,  that 
the  Lord  Chancellor  King  delivers  in  so  unqualified  a  manner  the  doctrine  in  the  text, 
that  a  woman's  marriage  is  alone  a  revocation  of  her  will.  ||It  seems  that  in  Mrs. 
Lewis's  case  it  was  held,  that  a  will  made  by  a  woman  before  marriage,  was  so  totally 
revoked  by  her  marriage,  that  it  could  not  revive  on  the  subsequent  death  of  her 
husband.     4  Burn,  E.  L.  c.  47 ;  and  see  Doe  v.  Steeple,  2  Term  R.  684.  || 

{If  two  unmarried  sisters  make  mutual  wills  in  favour  of  each  other, 
the  marriage  of  the  one  does  not  revoke  the  will  of  the  other. 

4  Ves.  J.  160,  Hinckley  v.  Simmons.  See  3  Ves.  J.  402,  Lord  Walpole  v.  Lord 
Orford.} 

[By  articles  made  in  1777,  previously  to  the  marriage  of  the  Duke  of 
Chandos,  the  duke  covenanted  that  he  would,  within  six  months  after  the 
marriage    cause  various  freehold  and  copyhold  estates  to  be  well  and 


OF   WILLS    AND   TESTAMENTS.     5S1 

(II)  IIow  avoided.     (Revocation  by  Marriayc.) 

effectually  conveyed,  so  that  he  might  be  seised  thereof,  to  the  intent  that, 
in  case  the  duchess  should  survive  him,  she  might  become  entitled  to 
dower ;  and  also  that  he  would,  within  twelve  months  after  the  marriage 
and  after  such  conveyances,  settle  the  said  estates,  subject  to  the  dower  of 
the  duchess,  to  the  use  of  himself  for  life,  remainder  to  trustees  to  preserve 
contingent  remainders,  remainder,  after  the  decease  of  the  duke  and  duchess, 
to  trustees  for  a  term  of  years,  to  raise  portions  for  younger  children ;  and 
subject  thereto  and  to  dower,  to  the  use  of  the  first  and  other  sons  in  tail 
male,  with  remainder  to  the  right  heirs  of  the  duke.  The  duke  also  cove- 
nanted, that  in  case  the  dower  should  not  be  equivalent  to  2000/.  per  annum, 
his  heirs,  executors,  or  administrators  would  make  good  the  deficiency. 
By  his  will,  bearing  date  Jan.  9th,  1780,  the  duke  confirmed  the  articles ; 
and  all  the  real  estates,  which  he  had  by  the  articles  agreed  to  settle,  he 
devised,  in  case  he  should  die  without  issue  male,  or  in  case  of  failure  of 
issue  male  in  his  wife's  lifetime,  to  his  wife  for  life,  remainder  to  his 
daughters  as  tenants  in  common  in  tail,  with  other  limitations.  The  duke 
afterward  executed  a  settlement,  by  which  he  disposed  of  the  fee,  and 
which  purported  to  be  in  execution  and  performance  of  the  articles ;  but  in 
truth  contained  many  clauses  and  modifications  inconsistent  both  with  the 
articles  and  will.  Lord  Chancellor  Loughborough  held,  that  as  the  settle- 
ment did  not  pursue  the  articles,  it  could  not  be  referred  to  them,  so  as 
to  form  one  instrument,  and  was  therefore  a  revocation  of  the  will. 
Brydgos  v.  Duchess  of  Chandos,  2  Ves.  jun.  417.     ||  See  Rob.  on  Wills,  2,  p.  61. || 

But  where,  by  articles  prior  to  marriage,  the  husband  being  seised  in  fee, 
covenanted  to  convey  his  estates  to  trustees,  to  the  use  of  himself  for  life, 
remainder  in  trust  to  secure  an  annuity  to  his  wife  in  bar  of  dower,  re- 
mainder to  trustees  for  years  to  raise  portions,  remainder  to  the  sons  and 
daughters  successively  in  tail,  remainder  to  his  own  right  heirs,  and  after- 
wards made  his  will,  and  devised  the  reversion  in  fee  in  the  event  of  his 
dying  without  issue ;  and  subsequent  to  the  will  executed  a  settlement  in 
pursuance  of  the  articles,  by  which  he  conveyed  the  estates  to  trustees  and 
their  heirs,  upon  the  trusts  and  to  the  uses  of  the  articles :  it  was  holden 
with  great  clearness,  that  the  will  was  not  revoked  by  this  settlement ;  that 
the  settlement  was  nothing  more  than  a  mere  legal  execution  of  the  articles : 
nothing  more  than  giving  the  legal  estate  in  lieu  of  the  equitable  estate,  of 
which  the  testator  was  seised  at  the  time  of  making  the  will ;  that  the  tes- 
tator devised  nothing  more  than  the  reversion  in  fee ;  that  his  acquiring 
the  legal  interest  made  no  difference ;  and  that  the  person  to  whom  the 
estate  was  conveyed  was  a  trustee  for  the  purposes  of  the  will. 

Williams  v.  Owen,  2  Ves.  jun.  395.  |]  See  Lord  Alvanley's  vindication  of  this  case 
in  Ilarmood  v.  Oglander,  6  Ves.  221.  || 

By  deed,  in  1750,  S  was  made  tenant  for  life,  remainder  to  his  son  in 
tail,  and,  in  1651,  the  father  and  son  joined  in  a  bargain  and  sale  to  W, 
and  his  heirs,  to  make  him  a  tenant  to  the  praecipe  in  order  to  suffer  a  com- 
mon recovery,  the  uses  of  which  were  declared  to  be  to  S,  the  father,  for 
life,  remainder  to  the  son  in  fee-simple.  Trinity  term  began  the  7th  June, 
1751.  On  the  8th  of  June  the  son  made  a  will,  whereby  he  disposed  of 
all  his  real  estate.  In  the  same  term  a  writ  of  entry  was  sued  out  return- 
able Quindcn  Trin.,  viz.,  16th  June,  and  the  recovery  was  completed  the 
same  term.  Soon  afterwards  the  testator  died.  And  a  doubt  arising  as  to 
the  validity  of  the  will,  a  case  was  sent  out  of  Chancery  for  the  opinion 

3c2 


582     OF   WILLS  AND   TESTAMENTS. 

(H)  How  avoided.     (Revocation  by  Changes  of  Estate,  drc.) 

of  the  Court  of  King's  Bench ;  and  the  question  was,  Whether  the  lands 
in  dispute  passed  by  this  will  made  after  the  bargain  and  sale,  and  after 
the  beginning  of  the  term,  but  before  the  return  of  the  writ  of  entry  ? 
And  the  Court  of  King's  Bench  certified  that  the  will  was  valid.  The 
foundation  of  which  opinion  seems  to  have  been,  that  the  court  con- 
sidered the  whole  transaction  as  one  conveyance,  each  part  whereof  must 
relate  to  the  date  of  the  bargain  and  sale,  which  was  the  principal  part, 
and  which  was  perfected,  made  absolute,  and  delivered  from  objections, 
by  the  subsequent  ceremonies. 

Selwyn  v.  Selwyn,  1  Black.  R.  251 ;  S.  C.  2  Burr.  1131.  So  explained  by  Lord 
Mansfield,  4  Burr.  19G2,  and  S.  C,  1  Black.  R.  700. 

So,  in  1724,  a  copyhold  estate  was  surrendered  to  the  uses  of  a  mar- 
riage settlement,  which  left  in  the  surrenderor  the  reversion  in  fee,  and 
a  power  to  devise  the  same  by  will ;  afterwards  a  surrender  was  made  by 
him  to  the  use  of  his  will,  and  a  will  made  accordingly.  Then,  in  1751, 
the  surrenderor  was  called  upon  by  the  steward  to  be  admitted  to  some 
of  the  particular  estates  created  by  the  original  surrender  in  1724,  which 
was  done.  And  the  question  was,  Whether  this  admittance  operated  as 
a  revocation  of  the  prior  will  ?  And  the  court  held  that  it  did  not :  be- 
cause the  whole  transaction  might  be  considered  as  one  and  the  same, 
and  then  the  admittance  in  1751  would  relate  to  the  surrender  in  1724, 
and  be  prior  to  the  will. 

Roe  on  the  dem.  of  Noden  v.  Griffiths,  1  Black.  R.  005  ;  S.  C.  4  Burr.  1952.J 
||  See  Vawser  v.  Jeffery,  3  Barn.  &  A.  402  ;  2  Swanst.  208. || 

Tenant  in  tail,  remainder  to  himself  in  fee,  devises  his  lands  to  A,  and 
then  suifers  a  recovery  to  the  use  of  himself  in  fee,  and  dies  without  issue 
male :  this  is  a  revocation  of  the  will. 

3  P.  Wins.  103,  Marwood  v.  Turner;  ||and  see  7  Term  R.  410,  note.|| 

||  So,  if  a  testator,  after  having  made  his  will,  levy  a  fine  to  such  uses 
as  he  shall  by  deed  or  will  appoint,  and  die  without  making  any  new 
will ;  the  will  made  prior  to  the  fine  is  thereby  revoked. 

Doe  v.  Dilnot,  2  New  R.  401.  || 

A,  23d  June,  1729,  made  his  will,  and  executed  two  duplicates  thereof 
before  three  witnesses,  and  made  B  and  C  (since  deceased)  executors ; 
and  one  of  the  duplicates  was  delivered  to  B.  A  died  2d  October,  1780, 
and  about  three  weeks  before  his  death  he  made  several  alterations  and 
obliterations  with  his  own  hand,  in  the  duplicate  remaining  in  his  own 
custody,  making  a  new  devise  of  his  real  estate,  and  a  new  residuary 
legatee,  and  a  new  executor,  entirely  striking  out  the  names  of  the  first 
devisees,  residuary  legatee,  and  executors,  and  altered  several  of  the  for- 
mer legacies,  and  inserted  or  interlined  new  legacies  ;  and  soon  after  wrote 
another  will  with  his  own  hand,  agreeable  in  a  great  measure,  but  not 
altogether,  to  the  will  or  duplicate  so  altered,  with  a  conclusion  in  these 
words :  "In  witness  whereof,  I,  the  said  testator,  have  to  each  sheet  set 
my  hand,  and  to  the  top,  where  the  sheets  are  fixed  together,  my  hand  and 
seal,  and  to  the  last  thereof  my  hand  and  seal,  and  to  a  duplicate  of  the 
amc  tenor  and  date,  this  day  of  1730."     But  there  was  no 

signing  or  fixing  together.  The  testator  soon  after  began  to  write  another 
will,  word  for  word  with  the  last,  so  far  as  it  goes,  but  went  no  farther 
than  devising  his  lands.  He  lived  six  days  after,  and  was  in  good  health, 
and   might   have  finished   and   executed  both  or  either  of  the   latter 


OF   WILLS   AND   TESTAMENTS.      583 

(H)  How  "Wills  may  be  avoided.     (Revocation.) 

wills  if  he  had  thought  fit.  He  never  sent  or  called  upon  B  for  the  dupli- 
cate of  the  first  will  in  his  hands,  though  B  lived  in  town.  After  the  death 
of  the  testator,  all  the  testamentary  papers  or  schedules  were  found  lying 
all  in  loose  and  separate  papers  upon  a  table  in  his  closet,  not  signed  or 
executed;  and  the  duplicate  of  the  first  will  was  found  on  the  same  table, 
altered  and  obliterated,  (ut  supra,)  with  his  name  and  seal  thereto  whole  and 
uncancelled.  Sentence  was  given  in  the  Prerogative  Court,  for  the  dupli- 
cate of  the  first  will  in  B's  hands,  and  confirmed  upon  appeal  to  the  de- 
legates, viz.,  Lord  Raymond,  C.  J.,  and  Probyn,  J.,  Dr.  Tindale,  and 
Dr.  Bramston,  (who  were  all  the  delegates  present,)  after  four  days'  so- 
lemn hearing ;  and  upon  a  commission  of  review,  (granted  by  Lord  Chan- 
cellor King,  upon  the  petition  of  Hyde,  the  executor  named  in  the  new 
will,)  was  again  affirmed  by  the  opinion  of  all  the  delegates,  (except  Dr. 
Pinfold,)  viz.,  of  the  judges,  Reynolds,  C.  B.,  Page,  J.,  and  Comyns,  EL, 
and  two  doctors  of  the  civil  law,  chiefly  on  the  reason,  as  the  reporter 
says  he  heard,  that  the  testator  did  not  intend  an  intestacy,  and  by  the 
alterations  and  obliterations  in  his  own  duplicate  of  his  first  will,  he  appeared 
only  to  design  a  new  will,  which,  as  he  never  perfected,  the  first  ought  to 
stand ;  and  testator  not  calling  for  the  duplicate  of  the  first  will  in  B's 
hands,  strengthens  the  presumption  of  his  intent  not  absolutely  to  destroy 
his  first  will  till  he  had  perfected  another,  which  he  never  did. 
Vin.  Abr.  tit.  Devise,  (R),  2,  pi.  17,  Hyde  v.  Mason. 

J  S  devised  all  his  real  and  personal  estate  to  trustees  A,  B,  and  C, 
their  heirs,  executors,  and  administrators,  in  trust  to  pay  151.  per  arm. 
to  the  plaintiffs  (his  two  sisters)  for  their  lives,  and  after  several  legacies, 
the  surplus  in  trust  for  the  dissenting  ministers  at  Reading,  &c,  and  gave 
300/.  to  each  trustee,  and  201.  per  ann.  to  each,  while  they  took  care  in 
executing  the  trust.  Afterward  by  lease  and  release  of  subsequent  date 
to  the  will,  the  testator  conveyed  all  his  real  estate  unto  and  to  the  use 
of  the  said  A,  B,  and  C,  and  their  heirs,  with  a  proviso  to  be  void  on 
payment  of  10s.  And  by  another  deed  of  the  same  date,  the  testator 
gave  all  his  personal  estate  to  the  said  A,  B,  and  C,  proviso  to  be  also 
void  on  payment  of  10s.  But  J  S  kept  both  the  deeds  in  his  own  cus- 
tody, and  soon  after  died ;  and  the  said  A,  B,  and  C  obtained  administra- 
tion cum  testamento  annexo  as  trustees.  The  trustees  for  some  years 
paid  the  151.  per  ann.  apiece  to  each  of  the  testator's  sisters ;  but  after- 
wards refused  to  continue  the  payment  thereof,  and  also  refused  to  pay 
any  of  the  dissenting  ministers  ;  but  kept  the  rents,  &c,  to  their  own  use. 
The  two  sisters,  (the  heirs  at  law,)  and  their  husbands,  brought  their  bill 
against  the  surviving  trustee,  insisting  that  the  deed  of  conveyance  of 
the  real  estate  and  the  deed  of  gift  of  the  personal  estate  had  revoked 
the  will,  and  that  there  was  a  resulting  trust  for  them,  as  heirs  at  law  ; 
or  at  least  that  they  (the  sisters)  were  entitled  to  their  15/.  per  ann.  an- 
nuities. The  defendant  insisted  on  the  plaintiffs'  having  forfeited  their 
annuities  by  bringing  their  bill,  there  being  a  clause  in  the  will,  that  if  they 
(the  sisters)  disputed  the  will,  then  they  should  forfeit  their  annuities. 
Lord  Chancellor  Talbot  decreed,  that  the  annuities  should  be  paid  to  the 
two  sisters,  with  the  arrears  and  growing  payments  thereof;  but  the  sur- 
plus was  decreed  to  go  to  the  dissenting  ministers. 

MS.  Rep.  Mich.  1734,  Lloyd  et  ux.  et  al.  v.  Spillet  et  al. ;  [3  P.  Wms.  344.  S.  C. ; 
2  Eq.  Ca.  Abr.  241,  pi.  30,  776,  pi.  25,  S.  C]  [This  decree  was  affirmed  on  a  re- 
hearing before  Ld.  Ilardwicke,  2  Atk.  148. J 


584     OF   WILLS   AND   TESTAMENTS. 

(II)  How  Wills  may  be  avoided.     [Revocation.) 

Sir  John  Wobrych  by  will,  in  August,  1722,  devised  bis  estate  to  trustees 
for  the  term  of  200  years,  for  payment  of  all  his  debts.  In  December 
following  he  devised  the  same  to  other  trustees  for  300  years,  in  trust  to 
pay  some  particular  debts  by  specialty  mentioned  in  the  deed,  and  all  en- 
cumbrances that  affected  the  estate.  In  June,  1728,  he  died;  and  the 
question  was,  If  the  deed  in  December  was  a  total  revocation  of  the  200 
years'  term  ?  And  at  the  Rolls  both  terms  being  held  to  be  consistent,  the 
plaintiff  now  brought  a  bill  of  review ;  and  Talbot,  Lord  Chancellor,  was 
of  opinion,  that  the  deed  in  December  was  intended  only  as  a  collateral 
security,  for  payment  of  the  debts  therein  mentioned,  and  such  others  as 
were  a  charge  on  the  estate ;  and  that  Sir  John  did  not  depart  from  his 
former  intentions  of  paying  all  his  debts,  but  only  to  give  preference  to 
those  comprised  in  the  300  years'  term,  which  by  law  were  preferred  to 
the  simple  contract  debts ;  and  therefore  he  declared,  that  so  much  of 
the  200  years'  term  should  be  sold  as  would  satisfy  the  purposes  of  the 
deed ;  and  afterwards  the  200  years'  term  should  commence. 
MS.  Rep.  Mich.  9  G.  2,  Weld  v.  Acton,  &c. 

[It  has  been  held,  upon  the  principle  that  no  actual  alteration  is  made  in 
the  thing  devised,  that  the  changing  of  trustees,  where  the  estate  originally 
devised  is  only  the  trust,  will  not  amount  to  a  revocation  in  law.  Thus, 
where  A  made  his  will,  and  devised  that  his  feoffees  in  trust  should  make 
a  lease  to  C  and  D  for  eighty  years,  at  a  certain  rent  payable  to  his  ex- 
ecutors ;  and,  being  afterwards  resolved  to  change  the  feoffees  in  trust, 
caused  them,  or  some  of  them,  to  join  with  him  in  a  feoffment  of  the  de- 
vised hereditaments  to  new  trustees  and  their  heirs,  to  the  use  of  A  and 
others,  until  A  limited  or  ordered  new  uses  thereof,  which  he  never  did ; 
it  was  held  that  the  feoffment  was,  in  equity,  no  revocation  of  the  will. 

Bark  v.  Zouch,  1  Rep.  Ch.  23  ;  and  vide  Coles  v.  Hancock,  2  Ch.  R.  109. 

So,  "W  by  his  will  devised  all  his  real  estate  in  Berkshire  to  certain 
trustees  and  their  heirs,  to  the  use  of  his  first  and  second  sons,  &c,  suc- 
cessively in  strict  settlement,  with  remainder  to  his  own  right  heirs ;  and 
afterwards  made  a  codicil  to  his  will,  by  which,  after  reciting  that  since 
the  publication  thereof  he  had  contracted  for  the  purchase  of  certain  lands, 
he  directed  the  trustees  and  executors  in  his  will  to  pay  the  purchase-money 
out  of  the  residuum  of  his  personal  estate  ;  and  that,  on  payment  thereof, 
the  said  purchased  lands  should  be  conveyed,  settled,  and  limited  to  the 
same  uses  and  on  the  same  trusts,  as,  by  his  will,  he  had  limited  and  de- 
clared concerning  his  other  estates.  Afterwards  the  testator  himself  com- 
pleted the  purchase  referred  to  in  the  codicil,  and  took  a  conveyance  of 
the  purchased  estates  to  certain  trustees,  therein  named,  in  fee,  in  trust 
for  himself  and  his  heirs,  soon  after  which  he  died.  And  the  question 
was,  Whether  the  conveyance  of  the  new  purchased  lands  to  the  trustees, 
subsequent  to  the  will  and  codicil,  was  not,  as  to  those  lands,  a  revoca- 
tion ?  And  it  was  decreed  that  this  was  no  revocation ;  for,  before  the 
purchase  completed,  the  vendor  was  but  a  trustee  for  the  purchaser,  and 
on  the  completion  of  the  purchase  was  but  taking  the  estate  home. 
Fullarton  v.  Watts,  cited  Dougl.  091,  Cane.  T.  14  G.  3  ;  ||2  Ves.  jun.  002. || 

G,  seised  of  manors  and  freehold  lands  in  fee,  by  indenture  mortgaged 
the  same  in  fee  :  afterwards  G,  on  the  marriage  of  his  son,  conveyed  these 
estates  to  trustees,  in  trust  to  secure  an  annuity  to  his  son  and  his  intended 
wife  for  and  during  the  joint  lives  of  himself  and  his  son,  and  subject 


OF  WILLS  AND  TESTAMENTS.      585 

(H)  How  Wills  may  bo  avoided.     (Fraud) 

thereto,  to  himself  for  life,  remainder  over,  the  ultimate  remainder  to 
himself  in  fee.  Then  G  made  his  will,  by  which  he  devised  the  reversion 
in  fee  of  part  of  these  lands  to  trustees  in  fee  upon  certain  trusts  and  to 
certain  uses  not  material  to  be  stated,  and  devised  the  reversion  in  fee 
of  the  other  part  to  the  same  trustees  and  their  heirs,  in  trust  to  sell  and 
dispose  thereof,  and,  with  the  money  arising  from  the  sale,  to  pay  and 
discharge  all  principal  and  interest  due  on  any  mortgages  or  other  en- 
cumbrances affecting  these  estates,  and,  from  and  after  payment  thereof, 
to  apply  the  residue  of  such  purchase-moneys  in  paying  and  discharging 
the  fortunes  therein  before  given  to  his  younger  children.  Then  the 
mortgagee,  in  consideration  of  the  mortgage-money  paid  in,  conveyed  the 
mortgaged  estates  comprised  in  the  marriage  settlement  to  the  trustees 
by  lease  and  release  to  the  uses  and  trusts  therein  limited,  freed  and  dis- 
charged from  all  equity,  terms,  provisoes,  and  conditions  of  redemption. 
Afterwards,  by  lease  and  release,  reciting  the  above  facts,  the  same  es- 
tates, comprised  in  the  marriage  settlement,  were  conveyed  by  the  trus- 
tees to  a  trustee  in  trust  for  G  in  fee.  Then  G  died  without  having  done 
any  other  act  to  revoke  or  alter  his  will.  And  one  question  was,  Whe- 
ther these  instruments  amounted  in  law  to  a  revocation  ?  And  it  was 
contended  that  they  did  ;  for,  at  the  time  of  the  will,  the  legal  estate  was 
in  the  mortgagee,  and,  after  the  will,  was  transferred  from  her  and  con- 
veyed to  a  ti'ustee ;  and,  though  the  equitable  interest  might  have  re- 
mained the  same  after  the  conveyance  to  the  trustee,  yet,  there  having 
been  an  alteration  of  the  legal  estate  after  the  will,  that,  it  was  said, 
would  operate  as  a  revocation.  Sed  per  curiam,  unanimously, — G,  at 
the  time  of  the  devise,  had  merely  the  equitable  fee  in  him,  the  mortgagee 
was  his  trustee.  Then,  on  payment  of  the  mortgage  money,  she  con- 
veyed the  legal  estate  in  fee  to  the  trustee,  which  was  merely  transferring 
it  from  one  trustee  to  another ;  and  there  has  been  no  determination  or 
case  in  which  the  change  of  a  trustee  has  been  held  to  revoke  a  will. 
Therefore  the  court  thought  the  will  was  not  revoked. 
Doe  v.  Pott,  Dougl.  710.     ||  See  per  Ld.  Eldon,  11  Ves.  554.  Jj 

Where  one  partner  gave  by  his  will  to  two  of  his  partners  one-ninth 
of  one-twelfth  of  the  profits  reserved  to  him,  over  and  above  her  shares 
reserved  to  them  by  the  articles  of  copartnership  ;  and  afterwards,  on  the 
expiration  of  the  partnership  under  those  articles,  renewed  it  with  those 
same  partners,  and  gave  them  a  greater  interest  than  they  had  under  the 
former  articles ;  Lord  Hardwicke  held,  that  the  renewal  of  the  articles 
was  not  a  revocation  of  the  will. 

Backwell  v.  Child,  Ambl.  2G0.] 

{A  testatrix  gave  a  fund  over  which  she  had  a  power  of  appointment, 
and  some  specific  articles,  to  trustees  in  trust  for  her  residuary  legatee 
afternamed ;  and  gave  the  general  residue  to  A.  By  a  codicil  she  revoked 
the  bequest  of  the  residue,  and  gave  it  to  A  and  B.  A  was  held  to  be 
solely  entitled  to  the  fund  under  the  appointment  and  the  specific  articles, 
they  being  separated  from  the  residue  by  the  testatrix. 

6  Ves.  J.  153,  Roach  v.  Haynes;  8  Yes.  J.  584,  S.  C.} 

2.  In  what  Cases  the  Court  will  set  aside  a  Will  for  Fraud :  ||  and  whore  such  Fraud 

is  examinable.  || 

Jekyll,  Lord  Commissioner,  took  a  difference  between  a  will  and  a  deed 
gained  upon  a  weak  man,  and  upon  a  misrepresentation  or  fraud ;  for  if  a 
Vol.  X.— 74 


586       OF  WILLS  AND  TESTAMENTS. 

(H)  How  Wills  may  be  avoided.     (Fraud.) 

will  be  gained  from  such  by  false  misrepresentation,  this  is  not  a  suffi- 
cient reason  to  set  it  aside  in  equity ;  as  was  determined  in  the  Duke  of 
Newcastle's  will,  betwixt  Lord  Thanet  and  Lord  Clare,  and  in  the  case 
of  Boclvil  and  Roberts :  but,  where  a  deed,  which  is  not  revocable  as  a 
will  is,  is  so  gained  from  such  a  person,  and  without  any  valuable  con- 
sideration, the  same  ought  to  be  set  aside  in  equity. 
2  P.  Wms.  270,  James  v.  Greaves. 

[So,  Lord  Hardwicke,  in  the  case  of  Bennett  and  Wade,  said,  that  so 
far  as  the  bill  sought  to  set  aside  the  will  there  in  question,  it  was  impro- 
per ;  for  the  court  could  not  make  a  decree  of  that  kind,  but  only  direct 
an  issue  devisavit  vel  non. 

Bennett  v.  Wade,  2  Atk.  324. 

And,  in  the  case  of  Webb  and  Claverden,  which  arose  on  a  bill  brought 
by  the  heir  at  law,  charging  fraud  and  circumvention  in  obtaining  a 
will ;  Lord  Hardwicke  said,  that  the  court  would  not  determine  a  fraud 
in  procuring  a  will,  without  directing  a  trial  at  law,  which  was  done  ac- 
cordingly. 

Webb  v.  Claverden,  2  Atk.  424.] 

A  will  obtained  in  extremis  and  upon  importunity  of  testator's  wife, 
his  hand  being  guided  in  the  writing  of  his  name,  has  been  set  aside. 

Vin.  Abr.  tit.  Devise  (Z),  2,  pi.  7,  Moneypenny  v.  Brown.  ||  The  circumstance  that 
one  residuary  legatee  was  the  attorney  who  drew  the  will  is  not  decisive  evidence  of 
fraud.     Paine  v.  Hall,  18  Ves.  475.  || 

A  will  likewise  concerning  land  may  be  good  at  law,  as  being  well  ex- 
ecuted, and  yet  be  set  aside  in  equity  for  fraud :  As  where — 

A  by  will  had  devised  his  lands  to  M,  his  mother,  in  fee ;  M  was  after- 
wards told  by  J  S,  that  this  will  would  not  be  good,  but  ought  to  be 
guarded,  as  he  called  it,  and  that  he  would  make  another  will  for  A, 
which  he  would  take  care  should  be  sufficiently  guarded.  J  S  afterward 
drew  a  will,  by  which  A  gave  the  land  to  M,  for  life  only,  remainder  to 
J  S,  in  fee.  Upon  a  bill  to  establish  the  first  will,  because  of  the  ill- 
practices  used  in  obtaining  the  after-will,  Lord  Chancellor  Cowper  di- 
rected an  issue  in  Middlesex,  where  the  will  was  made,  though  the  lands 
lay  in  Shropshire,  to  try  whether  the  will,  by  which  the  lands  in  fee  were 
devised  to  M,  was  the  last  will  of  A. 

1  P.  Wins.  287,  289,  Goss  v.  Tracy.  If  A  had  devised  lands  to  M,  in  fee,  and 
afterwards  J  S  had  told  A,  and  not  M,  that  the  will  was  void  for  want  of  its  being  well 
guarded  ;  and  that  he  would  make  another  will  for  A,  that  should  be  effectually 
guarded,  and  accordingly  had  made  another  will  for  A,  whereby  the  estate  had  been 
devised  to  M,  for  life  only,  remainder  to  J  S,  in  fee ;  this  would  be  a  good  will  in  law. 
if  attested  pursuant  to  the  statute  of  frauds,  but  would  be  set  aside  in  equity  for  the 
fraud  ;  but  as  to  the  evidence  of  the  testator's  being  non  compos  when  he  made  this 
second  will,  that  is  to  be  tried  at  law.  Per  Lord  Chancellor,  Ibid.  288.  A  will, 
though  good  at  law,  may  yet  be  set  aside  in  equity  for  fraud :  as  if  A  should  agree  to 
give  B  bank  bills  to  the  amount  of  1000Z.,  in  consideration  that  B  would  make  his 
will,  and  thereby  devise  his  land  to  A  ;  and  accordingly  B  does  make  his  will,  and  A 
gives  B  tin'  baftk  bills,  which  prove  to  be  forged  ;  this,  though  a  good  will  at  law, 
shall  nevertheless  be  avoided  in  equity  by  A's  heir  for  a  fraud.  Per  Lord  Chancellor, 
Ibid. ;  2  Vera.  R.  699.  ||  See  9  Ves.  519.||  See  in  1  Chan.  R.  12,  66,  instances  of  a 
will  of  land  being  set  aside  in  equity  for  fraud. 

[A  bill  was  brought  to  set  aside  a  will  for  fraud,  on  suggestion  that  the 
testator  was  incapable  of  making  it,  by  being  perpetually  in  liquor,  and 
particularly  when  he  executed  the  will.     And  the  defendant  pleaded  that 


OF  WILLS  AND  TESTAMENTS.       587 

(II)  How  Wills  may  be  avoided.     (Fraud.) 

the  will  was  duly  executed,  and  that  it  ought  to  prevail,  till,  upon  an  issue 
at  law,  it  should  be  found  to  be  otherwise.  Per  curiam, — The  plea  must 
be  allowed;  for  you  cannot  in  this  court  set  aside  a  will  for  fraud. (a) 

Anon.  3  Atk.  47  ;]  ||1  Ves.  &  B.  542;  1  Cox.  R.  353.  (a)  This  is  settled  by  the 
decisions  in  2  Atk.  324 ;  3  Bro.  P.  C.  476  ;  2  P.  Wins.  270  ;  and  see  Roberts  on  Wills, 
2,  p.  181.|| 

A  bill  was  brought  to  be  relieved  against  a  will  obtained  by  fraud  and 
imposition,  upon  this  case.  The  plaintiff's  son  had  made  a  will  in  Jan- 
uary, 1716,  and  thereby  devised  all  his  real  and  personal  estate  to  the 
plaintiff,  his  father,  but  falling  ill  soon  after,  at  a  great  distance  from  his 
father,  of  a  consumption,  of  which  he  died,  defendant  persuaded  him  to 
make  a  new  will,  some  short  time  before  his  death,  whereby  he  devised  all 
his  real  and  personal  estate  to  defendant  (being  his  kinsman)  upon  trust  to 
pay  his  debts  and  legacies;  but  says  nothing  of  the  residuum ;  but  there 
was  a  general  clause  of  revoking  all  former  wills,  &c.  There  were  several 
witnesses  to  prove  an  imposition  and  contrivance,  and  false  suggestion  to 
induce  the  testator  to  make  this  new  will,  sufficient  to  satisfy  the  court  that 
it  was  unfairly  obtained,  but  the  will  was  regularly  signed,  sealed,  and 
published,  according  to  the  statute  of  29  Car.  2,  and  so  a  good  will  at 
law.  Lord  C.  J.  Parker,  having  taken  time  to  consider  of  it,  decreed 
defendant  to  account  for  the  personal  estate,  having  just  allowances,  &c, 
and  to  convey  the  real  estate  to  plaintiff,  subject  to  the  payment  of 
testator's  debts,  as  a  trustee  for  the  plaintiff. 

Vin.  Abr.  tit.  Devise  (Z),  2,  pi.  11 ;  Bransby  v.  Keridge,  &«. ;  [1  P.  Wins.  548,  S. 
C.  cited.  But  this  decree  of  Lord  Parker  was  afterwards  reversed  by  the  Lords  ;  3 
Bro.  P.  C.  358  ;  and  so,  it  seems,  was  another  of  his  decrees  of  alike  kind  in  Andrews 
v.  Powys,  8  Vin.  Abr.  p.  548 ;  11  Vin.  Abr.  p.  59  &  66.  For  Lord  Hardwicke,  in 
Barnsley  v.  Powell,  1  Ves.  287,  says :  "  It  is  certainly  now  settled  by  the  Lords  in 
Bransby  v.  Keridge,  that  this  court  cannot  set  aside  a  ivill  of  personal  estate  for  fraud , 
nor  will  I  infringe  on  what  is  laid  down  there,  and  in  Powys  v.  Andrews,  and  in  the 
case  of  Mr.  Hawkins's  ivill;  and  in  Bennett  v.  Wade,  Lord  Hardwicke  speaks  of  the 
case  of  Andrews  v.  Powys  in  like  terms.  But,  where  a  will  was  both  of  real  and  per- 
sonal estate  ;  and  as  to  the  former  it  had  been  found  by  the  jury  to  be  forged,  and  the 
plaintiff's  consent  to  probate  had  been  procured  by  fraud ;  Lord  Hardwicke,  upon  the 
ground  of  this  fraud,  and  not  upon  any  supposition  of  a  right  to  examine  the  validity 
of  the  will  in  contradiction  to  the  probate,  relieved  against  the  will,  and  ordered  the 
defendants  to  consent  to  a  revocation  of  the  probate  ;  and  intimated  that  if  this  should 
not  be  consented  to,  he  should  go  further  and  make  the  executors  trustees.  Barnsley 
v.  Powell,  ubi  suprcl.  So,  too,  in  Sheffield  v.  Duchess  of  Buckingham,  1  Atk.  630. 
Lord  Hardwicke  granted  an  injunction  to  restrain  the  duchess  from  further  contro- 
verting the  will  of  her  husband  ;  but  he  founded  this  injunction  on  an  admission  of 
the  will  by  the  duchess  in  a  former  suit,  in  which  it  was  agreed  to  be  well  proved  : 
and  he  admitted  that  in  an  adversary  way  the  Court  of  Chancery  or  a  court  of  law 
could  not  determine  on  the  validity  of  a  probate.  See  Mr.  Hargrave's  learned  argument 
on  the  effect  of  sentences  of  courts  ecclesiastical  in  cases  of  marriage.} 

A  bill  was  likewise  brought  to  set  aside  a  will  of  a  personal  estate,  and 
to  stay  the  probate,  upon  a  suggestion  of  its  being  obtained  by  fraud ; 
and  the  defendant  demurred  to  the  jurisdiction  of  Chancery,  whereupon 
an  injunction  was  moved  for,  insisting  that  the  demurrer  confessed  the 
fraud,  and  that  fraud  was  cognisable  in  equity  as  well  as  in  the  spiritual 
court ;  but  the  injunction  was  denied. 

2  P.  Wms.  286,  Stevenson  v.  Gardiner.  And  per  cur.  the  spiritual  court  has  juris- 
diction of  fraud  relating  to  a  will  of  personal  estate,  and  can  examine  the  parties  by 
way  of  allegation  touching  the  same,  and  if  the  will  was  read  falsely  to  testatrix,  then 
it  was  not  her  will.     Ibid.     {See  5  Ves.  J.  647.} 


588       OF  WILLS  AND  TESTAMENTS. 

(H)  How  Wills  may  be  avoided.     [Fraud.) 

{Parol  evidence  may  be  given  of  questions  asked  by  the  testator  at  the 
time  of  executing  his  will,  whether  the  contents  were  the  same  as  those 
of  a  former  will,  to  which  he  was  answered  in  the  affirmative ;  in  order 
to  set  aside  the  latter  will  on  the  ground  of  fraud.  So  evidence  may  be 
given  to  show  that  one  paper  was  substituted  for  another. 

8  Term,  147,  Doe  v.  Allen. 

So  parol  evidence  to  show  that  the  testator  executed  a  will  under 
duress  may  be  received ;  but  the  subsequent  declarations  of  the  testator 
himself  to  that  effect  are  not  admissible. 

2  Johns.  Rep.  31,  Jackson  v.  Kniffen,  by  three  judges  against  two.  See  2  Binn. 
406,  Havard  v.  Davis. 

A  particular  clause  inserted  in  a  will  by  fraud  or  mistake  may  be  ex- 
punged, and  the  rest  of  the  will  established. 

Barton  v.  Robins,  Parmenter  v.  More,  Garnett  v.  Sellers,  Price  v.  Barnsley,  and 
Bridge  v.  Arnold,  cited  5  Yes.  J.  639. 

And  an  addition  has  been  made  to  a  will,  where  a  clause  was  omitted 
by  mistake. 

Thus  the  testator,  Dr.  Gerrard,  had  given  instructions  to  an  attorney  to 
make  his  will,  and  a  few  months  afterwards  wrote  to  the  attorney  to  ap- 
point another  executor,  and  directing  his  wife's  name  to  be  inserted  as 
residuary  legatee.  The  attorney  forgot  her  Christian  name,  and  therefore 
left  a  blank  for  her  name ;  and  the  will  being  returned  to  the  testator  he 
did  not  fill  up  the  blank ;  but  her  name  appeared  in  the  instructions. 
The  omission  being  accounted  for,  the  will,  together  with  the  instructions, 
was  pronounced  for  as  the  last  will  of  the  deceased. 

5  Ves.  J.  640. 

A  similar  case  occurred  upon  the  will  of  a  Mr.  Janssen,  containing  a 
provision  for  his  two  daughters,  and  giving  instructions  to  his  attorney 
for  giving  the  residue  to  one  of  them.  That  direction  was  at  the  top  of 
the  instructions.  The  attorney  thought  it  better  to  put  the  residuary 
clause  at  the  end,  but  when  he  got  to  the  end  he  forgot  it ;  and  the 
testator  did  not  observe  the  omission.  The  delegates  established  the 
appointment  in  favour  of  the  daughter  as  residuary  legatee. 

5  Yes.  J.  640.     See  8  Yes.  J.  97,  Holder  v.  Howell. } 

Where  a  bill  is  brought  to  prove  a  will  of  lands,  the  sanity  of  the  tes- 
tator must  be  proved ;  but  it  is  otherwise  in  case  of  a  deed  of  trust  to 
sell  for  payment  of  debts. 

3  P.  Wms.  93,  Harris  v.  Ingledew.  A  will  was  set  aside  after  forty  years'  posses- 
sion under  it,  upon  account  of  the  insanity  of  the  devisor,  and  although  in  prejudice 
of  a  purchaser.  Vin.  Abr.  tit.  Devise  (Z),  2,  p.  169,  Squire  v.  Pershall.  {The  sanity 
of  the  testator  is  to  be  presumed  until  the  contrary  appears:  the  proof  of  his  mental 
;ncapacity  lies  upon  him  who  alleges  it.  But  after  a  general  derangement  has  been 
shown,  it  is  then  incumbent  on  the  other  side  to  prove  that  the  testator  was  sane  at 
the  very  time  when  the  will  was  executed.  5  Johns.  Rep.  144,  Jackson  v.  Van  Dusen. 
Aiil?,  Yol.  v.  p.  7  ;  contra.,  1  Mass.  T.  Rep.  71,  Phelps  v.  Hartwell ;  Ibid.  335,  Blaney 
v.  Sargeant.  As  to  the  proof  of  sanity,  see  further  3  Mass.  T.  Rep.  330,  Poole  v. 
Richardson  ;  1  Wash.  225  ;  1  Hen.  &  Mun.  476,  Temple  &  Taylor  v.  Temple ;  1  Bay, 
335,  lleyward  v.  Hazard.} 

A  will  hath  relation  only  to  the  testator's  death,  and  not  to  the  making ; 
for  till  his  death  he  is  master  of  his  own  will :  and  therefore  the  will  of  a 
papist  in  Ireland  was  held  to  be  avoided  by  a  subsequent  statute  made  in 


OF  WILLS  AND  TESTAMENTS.       589 

(II)  How  Wills  may  be  avoided.     (Fraud.) 

that  kingdom,  which  enacts,  that  the  lands  of  papists  there  shall  not  be 
devisable,  but  descend  in  gavelkind. 
Vin.  Abr.  tit.  Devise,  (H),  G,  pi.  7,  Burk  v.  Morgan. 

It  has  been  said,  fhat  wills  (of  personal  estates  only)  though  gained 
by  fraud,  if  proved  in  the  spiritual  court,  are  not  to  be  controverted  in 
equity.     Thus,  where — 

A  made  his  will,  and  thereby  gave  the  plaintiff  the  greatest  part  of 
his  personal  estate,  to  the  value  of  5000Z.,  as  was  proved  in  the  case  ; 
but  one  B,  his  maid-servant,  had,  in  his  sickness,  prevailed  on  him  (as 
was  alleged)  to  make  another  will,  and  to  marry  her  a  week  before  his. 
death,  when  he  lay  in  his  sick  bed,  at  six  of  the  clock  at  night,  though  it 
was  really  proved  by  two  ministers,  that  she  was,  a  year  before,  actually 
married  to  the  defendant  M,  and  was  then  his  wife  ;  and  that  M  procured 
the  license  for  the  marriage  of  A  to  B.  And  this  will  being  set  up  by 
M,  executor  to  B,  though  it  appeared  there  was  as  gross  practice  as  could 
be,  in  gaining  the  will,  the  testator  being  non  compos,  both  at  the  time 
of  making  this  will,  and  also  at  the  time  of  his  supposed  marriage ;  and 
that  in  his  health  he  knew  that  M  and  B  were  married ;  and  that  B  sup- 
pressed the  first  will :  yet  that  will  so  set  up,  being  proved  in  the  Pre- 
rogative Court,  and  the  matter  in  question  being  purely  relating  to  the 
personal  estate,  the  Lord  Chancellor  was  of  opinion,  that  whilst  that  pro- 
bate stood,  this  matter  was  not  examinable  in  Chancery ;  and  though  the 
fraud  was  fully  proved,  and  was  opened  to  him,  he  would  not  hear  any 
proofs  read,  but  dismissed  the  bill. 

2  Vern.  8  &  9,  Archer  v.  Mosse. 

So,  where  an  executor  proved  a  will  of  a  personal  estate,  wherein  one 
of  the  legacies  was  forged,  it  was  decreed,  that  the  executor  had  no  re- 
medy in  equity,  but  ought  to  have  proved  the  will,  with  a  special  reser- 
vation as  to  that  legacy. 

1  P.  Wins.  388,  Plume  v.  Beal. 

But  though  wills  (of  personal  estates  only)  gained  by  fraud,  and  proved 
in  the  Spiritual  Court,  are  not  to  be  controverted  in  equity,  yet  if  the 
party  claiming  under  such  will  comes  for  any  aid  in  equity  he  shall  not 
have  it. 

2  Vern.  76,  Nelson  v.  Oldfield. 

It  has  been  determined  likewise,  that  the  courts  of  equity  can  hold 
plea  concerning  a  legacy,  and  likewise  concerning  the  devise  of  the  resi- 
duum, which  is  but  a  legacy :  and  they  may,  in  notorious  cases,  decree  a 
legatee,  who  has  obtained  a  legacy  by  fraud,  to  be  a  trustee  for  another  ; 
as  if  the  drawer  of  the  will  should  insert  his  own  name  instead  of  the  name 
of  a  legatee. 

1  Stra.  G73,  Marriot  v.  Harriot. 

]| And  where  a  strong  case  was  made  out  on  affidavits  of  the  executor's 
undue  influence  over  the  testatrix,  of  her  habitual  intoxication,  &c,  the 
Court  of  Chancery  granted  an  injunction  to  restrain  the  executor  claim- 
ing under  the  will  and  under  an  alleged  gift  inter  vivos,  from  converting 
the  property  into  money. 

Edmunds  v.  Bird,  1  Ves.  &  B.  542 ;  and  see  6  Yes.  172 ;  2  Yes.  &  B.  262. || 

But  it  has  been  decreed  in  the  House  of  Lords,  that  a  will  of  a  real 
estate  could  not  be  set  aside  in  a  court  of  equity  for  fraud  or  imposition, 

3D 


590       OF  WILLS  AND  TESTAMENTS. 

(H)  How  Wills  may  be  avoided.     (Fraud.) 

but  must  first  be  tried  at  law  on  devisavit  vel  non,  being  matter  proper 

for  a  jury  to  inquire  into. 

1  Abr.  Eq.  Cas.  406,  Bransby  v.  Keridge.     ||See  Jones  v.  Jones,  7  Price,  663; 
Trimbleston  v.  D' Alton,  1  Bligh.  R.  N.  S.  427. || 

1 1 On  an  issue  of  devisavit  vel  non,  directed  by  the  Court  of  Chancery 
to  try  the  validity  of  the  will  of  Mr.  Bennett,  tried  at  the  bar  of  the 
Court  of  Exchequer,  the  heir  at  law  sought  to  set  aside  the  will  on  the 
ground  of  weakness  in  the  testator,  and  dominion  exercised  over  his  mind 
by  others.  It  appeared  that  he  was  naturally  weak  and  childish,  and 
drank  to  such  an  excess  as  to  affect  both  body  and  mind,  and  was  under 
the  influence  of  the  devisee,  a  woman  for  whom  he  had  an  inclination. 
The  Chief  Baron  Eyre,  in  summing  up,  told  the  jury  there  was  another 
ground,  which,  though  not  so  distinct  as  actual  force,  yet,  if  it  could  be 
proved,  would  certainly  destroy  the  will ;  that  is,  if  a  dominion  was  ac- 
quired by  any  person  over  a  mind  of  sufficient  sanity  to  general  purposes, 
and  of  sufficient  soundness  to  regulate  his  affairs  in  general,  yet  if  such 
dominion  were  acquired  over  him  as  to  prevent  his  exercise  of  that  dis- 
cretion, it  would  be  equally  inconsistent  with  the  idea  of  a  disposing 
mind ;  and  perhaps  the  most  probable  instance  of  such  a  dominion  being 
acquired  was,  that  of  an  artful  woman,  like  the  present,  having  taken 
possession  of  a  man  and  subdued  him  to  her  purpose.  The  case  must 
turn  on  one  or  other  of  these  grounds, — either  on  the  general  capa- 
city of  Mr.  B.  to  act  for  himself  in  the  momentous  instance  of  making 
his  will,  or  on  the  ground  of  dominion  or  influence  acquired  over  him  by 
the  woman.  He  did  not  think  it  necessary  to  go  so  far  as  to  make  a 
man  absolutely  insane,  so  as  to  be  an  object  for  a  commission  of  lunacy, 
in  order  to  determine  the  question  whether  he  was  of  sound  and  disposing 
mind,  memory  and  understanding.  A  man,  perhaps,  might  not  be  in- 
sane, and  yet  not  equal  to  the  important  act  of  disposing  of  his  property 
by  his  will.  His  lordship,  on  the  whole,  thought  the  weight  of  evidence 
in  favour  of  the  plaintiff;  and  the  jury  found  accordingly  in  favour  of  the 
will. 
Mountain  v.  Bennett,  1  Cox's  R.  353.  || 

pAn  alteration  made  in  a  will  by  a  person  claiming  under  it,  whether 
material  or  immaterial,  renders  it  void. 
Jackson  v.  Malin,  15  Johns.  293. 

But  an  immaterial  alteration  to  a  will,  made  by  a  stranger,  does  not 
invalidate  it. 

Malin  v.  Malin,  1  Wend.  625. (j 


^INDEX   TO   VOL.   X. 


A. 

Advancement,  what  shall  be  considered  a  trust,  and  what  an,  209. 
Agistment,  what,  12. 

when  tithable,  12. 
Agreements  concerning  tithes,  72. 

when  usurious,  268. 
Alien  enemy  cannot  make  a  will,  484. 
Allowance  to  trustees,  when  to  be  made,  260 
Alteration,  effect  of  an,  in  a  will,  590. 
Animalia  fntctuosa,  what,  14,  15. 
Animalibus  inutilibus,  what,  14, 

utilibus,  what,  14. 
Animals,  when  the  young  of,  are  tithable,  24. 
Apportionment  of  tithes  in  a  parish,  32. 
Assent  of  husband,  effect  of,  482. 
Attestation  to  a  will,  effect  of,  490. 

where  to  be  made,  491. 

clause,  effect  of,  492. 

B. 

Bargain  and  sale  to  uses,  effect  of,  147. 

Bees,  when  tithable,  26. 

Birth  of  a  child,  how  far  a  revocation  of  a  will,  570. 

Blind,  effect  of  will  of  one  who  is,  496. 

Bog,  when  tenant  may  dig,  428. 

Breach  of  trust,  effect  of,  213. 

c. 

Cancelling  of  a  will,  effect  of,  541,  546. 

prima  facie  evidence  of  revocation,  54t. 
Certainty  required  in  a  verdict,  346. 
Cestui  que  trust,  power  of,  258. 
right  of,  258. 

may  convey  trust-estate,  258. 
trust  property  when  liable  for  debts  of,  259. 
forfeitures  by,  259. 
suits  by  and  against,  261. 
how  far  protected,  263. 
what  acts  of,  will  destroy  a  trust,  217. 
Change  of  venue,  when  motion  for,  to  be  made,  370.  _      _ 

certainty  required  in  an  affidavit  on  which  a  motion  is  made  to,  61  I 
cases  when  there  can  be  no,  372. 
Childishness  will  invalidate  a  will,  when,  483. 
Children,  posthumous,  to  what  entitled,  567,  570. 
Coal,  when  tenant  in  dower  may  dig,  428. 
Codicil,  what,  487. 

effect  of,  511. 
nature  of,  532. 
Collateral  warranty,  nature  of,  403,  404. 
who  bound  bv,  403. 

(591) 


592  INDEX. 

Commissions,  when  trustees  are  entitled  to,  260. 
Composition  real,  payment  of  tithes  by,  49. 
Compurgators,  who  are,  383. 

how  sworn,  383. 
Construction  of  a  will,  how  made,  533. 
Consummation  of  a  will,  what,  533. 
Contingent  remainders,  how  to  be  executed,  157.      j 
Contract,  when  usurious,  268. 
Conusance  of  jurisdiction  of  Universities,  how  to  be  demanded,  106. 

by  whom  to  be  demanded,  106. 
when  to  be  demanded,  107. 
Conveyances  to  uses,  of  the  several  sorts  of,  129. 
feoffments,  130. 
fines,  130. 
recoveries,  130. 
Copulative  terms,  effect  of,  540. 
Corn,  when  tithable,  10. 

Counts,  consequences  of  joining  good  and  bad,  309. 
Covenant  to  stand  seised  to  uses,  nature  and  effect  of,  136. 

who  may  make,  137. 
to  whom  may  be  granted  a,  137. 
consideration  necessary  to,  140. 
extends  how  far,  140. 
by  what  words  created,  144. 

D. 

Deaf  and  dumb  cannot  make  a  will,  when,  483. 

Declaration  of  trust,  what  amounts  to  a,  193. 

Deeds  declaring  the  uses  of  feoffments,  fines  and  recoveries,  130. 

Defects  cured  by  verdict,  what  are,  354. 

Depasturing,  what,  12. 

Descendable,  a  use  is,  119. 

Discharge  of  tithes  by  grant,  65. 

bull,  65. 

order,  66. 

unity  of  possession,  70. 
Disjunctive  terms,  effect  of,  540. 
Dovediouses,  waste  to,  428. 
Dower  cannot  be  had  in  a  use,  125. 
Drunkard  cannot  make  a  will,  when,  483. 

E. 

Eggs,  when  tithable,  24. 

Equity  will  grant  relief  in  cases  of  waste,  when,  474. 

Estrepement,  when  it  lies,  467. 

KviJence  in  cases  of  usury,  304. 

Excusable  waste,  what  is,  434. 

Executors  when  liable  for,  447. 

Executory  fees,  how  limited,  149. 

with  regard  to  freeholds,  152. 
resnect  to  chattels,  154. 
Exilium,  what,  421. 
Extrinsic  evidence,  when  proper  to  explain  a  will,  537. 

F. 

Feme,  not  dowable  in  a  use,  125. 

covert,  not  able  to  make  a  will,  481. 
Ferce  natures,  when  animals,  tithable,  24. 
Fidei  commissa,  what,  113. 

abolished  in  Louisiana,  113. 
Fidei  commissarius,  who,  113. 


INDEX.  593 

Fish,  when  tithable,  26. 

ponds,  waste  to,  428. 
Fixtures,  when  it  is  waste  to  remove,  431. 

trade,  what,  433. 
Forfeiture,  cannot  be  of  a  trust,  124. 
Fraud,  when  will  can  be  set  aside  for,  585. 
Fruit  when  not  tithable,  7. 

G. 

Gardens,  what,  428. 

General  verdict,  what,  308. 

Glebe  lands,  when  tithable,  48. 

Grammar,  a  will,  not  always  to  be  construed  according  to  the  rules  of,  540. 

H. 

Handwriting,  in  what,  a  will  may  be,  489. 

to  a  will,  how  proved,  499. 
Hay,  when  tithable,  10. 

Hazard,  what  will  take  a  contract  out  of  the  statutes  of  usury,  285. 
Heirs,  effect  of,  in  a  will,  488. 
Hereditaments,  meaning  of,  126. 
Holograph  testament,  what,  518. 
Honey,  when  tithable,  26. 
Houses,  waste  to,  428. 

I. 

Immaterial  issue,  effect  of  a  verdict  on,  323. 
Inception,  what,  533. 
Infant,  when  able  to  make  a  will,  481. 
Informal  issue,  effect  of  verdict  on,  323. 
Injunction  lies  to  restrain  waste,  464,  467. 
Insensible  issue,  effect  of  a  verdict  on,  326. 
Insufficient  issue,  effect  of  a  verdict  on,  326. 
Intestate,  who  is,  480. 

J. 

Judgment  in  actions  of  waste,  for  what  given,  461. 
Jury,  power  of,  over  verdict,  315. 

effect  of  separation  of,  317. 

consequences  of  misbehaviour  of,  317,  318. 
Juror,  consequences  of  misbehaviour  of,  on  verdict,  316. 
Justifiable  waste,  what  is,  435. 

L. 

Land,  waste  to,  423. 

Language,  in  what,  a  will  may  be  written,  489. 

Leases  concerning  tithes,  72. 

Jjer  loci,  when  to  govern  in  the  construction  of  wills,  534. 

Liability  of  trustees,  what,  247,  253. 

for  neglect  in  calling  in  debt,  when,  250. 

interest,  when,  250. 

using  trust  money,  251. 

misapplying  funds,  251. 

each  other,  255. 
Limitation,  an  express  trust  is  not  within  the  act  of,  192. 

of  actions  in  cases  of  usury,  300. 
Lineal  warranty,  what  is  a  bar  to,  402. 
Lunatic,  when  able  to  make  a  will,  482,  483. 

Vol.  X.— 75  3  d  2 


594  INDEX. 

M. 

Mark,  -when  a  sufficient  signature,  490. 

Marriage,  how  far  a  revocation  of  a  will,  568. 

Matter  of  estoppel,  of  a  verdict  which  is  contrary  to  a,  ^352. 

record,  of  a  verdict  which  is  contrary  to  a,  351. 
Meadows,  waste  to,  423,  428. 
Mines,  what  is  waste  to,  428. 
Misbehaviour  of  jurors,  verdict  set  aside  for,  316. 

parties,  verdict  set  aside  for,  321. 
Mixed  tithes,  how  to  be  set  out,  44.     See  Tithes. 
Modo  et  forma,  effect  of,  343. 
Modus,  what,  50. 

certainty  required  in  a,  53. 

of  a,  which  has  not  been  constantly  paid,  57. 

of  a  leaping,  58. 

of  a  rank,  58. 

of  a,  which  amounts  to  prescription,  56. 

liable  to  fraud,  61. 

for  such  persons  as  live  out  of  the  parish,  01. 

extent  of  a,  62. 

suit  in  equity  to  establish  a,  90. 


N. 


Negligent  waste,  what,  422. 
Non  decimendo,  prescription  in  a,  63. 
Nuncupative  will,  what,  487,  529. 
equisites  of,  530. 


Orchards,  waste  to,  428. 


0. 


Parks,  waste  to,  428. 
Pencil,  a  will  may  be  written  with  a,  490. 
Permissive  waste,  what,  422. 
Person,  meaning  of,  126. 
Persona  mixta,  who  is  a,  26. 

Personal  tithes,  who  is  liable  to  pay,  9.     bee,  Tithes. 
what,  9. 
how  paid,  39. 
Persuasion  of  a  testator,  effect  of,  487. 
Post  obit,  not  usurious,  286. 
Posthumous  children,  to  what  entitled,  567. 
F'ower  of  revocation  of  uses,  160. 
relating  to  lands,  what,  100. 

is  appendant,  160. 
in  gross,  160. 
of  cestui  que  trust,  258. 
Predial  tithes,  what,  11.     See  Tithes. 

how  set  out,  39. 
Prescription  non  decimendo,  what,  03. 
Presentation  to  the  livings  of  papists,  when  to  be  made,  1U7. 

to  whom  to  be  made,  JU9. 
how  the  right  of,  may  be  prevented,  108. 
proceedings  in  equity,  relating  to,  109. 
how  right  of.  may  be  divested,  110. 

Privy  verdict,  what,  308. 

Process  in  actions  of  waste,  form  of,  451. 

Progression,  what,  533. 


INDEX.  595 

Prohibition  lies  to  a  suit  in  spiritual  court  for  subtraction  of  tithes,  79. 
Properties  of  an  estate  in  use,  113. 

it  is  alienable  at  common  law,  113. 
by  statute,  when,  115. 
Publication  what  is  a,  of  a  will,  490. 
what  is  evidence  of,  502. 

R. 

Recitals,  when  established  by  a  verdict,  361. 

Refreshments,  when  a  verdict  will  be  rendered  void,  because  the  jury  took,  3G3. 
Remainders,  how  to  be  executed,  157. 
defeated,  158. 

where  there  is  no  power  of  revocation,  158. 
where  is  an  express  power,  160. 
suspended,  revived,  or  extinguished,  167. 
Repairs  of  trust-estate,  how  to  be  borne,  253. 
Republication  of  a  will,  what,  504. 

how  made,  504. 
parol,  when  sufficient,  505. 
not,  505. 
Resulting  uses,  what,  176. 
trust,  what,  199. 

when  one  buys  land,  and  the  money  is  paid  by  another.  208. 
must  arise  at  the  time  of  making  deed,  208. 
cannot  be  against  intention  of  the  parties,  208. 
Revocation  of  a  will,  what,  541. 

is  express  or  implied,  542. 
effect  on  a  former  will,  542. 
by  cancelling,  what,  541,  546. 
codicil,  effect  of,  552. 
subsequent  devise,  555. 
change  of  estate,  557. 
marriage,  568. 
Right  of  cestui  que  trust,  258. 

s. 

Sealing  to  a  will,  when  required,  490. 

not,  490. 
Second  uses,  what,  184. 

Securities,  when  avoided  on  the  ground  of  usury,  285. 
Seised,  meaning  of,  126. 
Shifting  uses,  what,  104. 
Signature  to  a  will,  what  is  a  sufficient,  490. 
Silva  ccedua,  what,  21. 
Small  tithes,  what,  33. 
Special  verdict,  what,  309. 

requisites  of,  313. 
when  defective,  313. 
Stock,  what,  536. 
Subtraction  of  tithes,  suit  for,  76. 

in  spititual  court,  76. 
Chancery,  82. 
action  upon  the  statute  against,  91. 
Suit  in  spiritual  court  for  subtraction  of  tithes,  76. 

a  court  of  equity  for  subtraction  of  tithes,  82. 

T. 

Tenet,  when  waste  lies  in  the,  454. 
Tcnuit,  when  waste  lies  in  the,  456. 
Terms  which  wait  on  the  inheritance,  what,  168. 
in  gross,  how  limited,  173. 


596  INDEX. 

Testament,  what,  479. 
Testator,  who  is,  480. 

must  he  capable  to  make  a  will,  485. 
intend  to  make  a  will,  485. 
have  a  free  mind,  486. 
Tithes,  what,  5. 

origin  of,  5. 
nature  of,  5. 
what  things  pay,  7. 
who  liable  to  personal,  9. 
what  predial  things  pay,  11. 
agistment,  how  paid,  12. 
of  corn,  10. 
hay,  16. 
wood,  17. 

young  of  animals,  24. 
eggs,  24. 
wool,  25. 
fish,  26. 
honey,  26. 
bees,  26. 
milk,  26. 
to  whom  general,  to  be  paid,  26. 

parochial,  to  be  paid,  27. 
right  to  a  portion  of,  in  a  parish,  32. 
by  whom,  to  be  paid,  33. 
what  shall  be  considered  small,  33. 

how  far  custom  of  a  parish  is  to  be  regarded  in  setting  out,  30. 
time  and  manner  of  paying  personal,  39. 
setting  out  predial,  39. 
paying  mixed,  44. 
tithes  done  by  custom,  45. 
composition  real,  49. 
when  payment  of,  suspended,  46. 

when  a  modus  is  a  real  composition  of,  50.     See  Modus. 
of  a  prescription  in  non  decimando,  63. 
discharge  of,  by  grant,  65. 
"  bull,  65. 
order,  66. 

unity  of  possession,  70. 
agreements  and  leases  concerning,  72. 
suit  in  spiritual  court  for  subtraction  of,  76. 

Chancery  for  subtraction  of,  82. 
where  prohibition  lies  to  a  suit  in  spiritual  court,  for  subtraction  of,  7.). 
suit  in  equity,  to  establish  a  modus,  90. 
action  upon  the  statute  against  subtraction  of,  91. 
Trade  fixtures,  what  are.  433. 
Traitor  cannot  make  a  will,  484. 
Trees,  waste  to,  424,  428. 

when  to  be  cut  down  without  committing  waste,  436. 
Trial  in  cases  of  usury.  304. 
Trustees,  how  far  answerable  for  each  other,  255. 
removed,  258. 
compensation  of,  260. 
suits  by  and  against,  261. 
corporations  may  be,  262. 
when  executors  will  be  considered,  262. 
who  shall  be  considered.  262. 
what  act  of,  shall  defeat  a  trust,  217. 
when  guilty  of  a  breach  of  trust,  213. 
how  far  favoured,  247. 
liability  of,  247,  253.     See  Liability. 
for  neglect,  250. 
interest,  250. 


INDEX.  597 

Trustees,  liability  of,  for  using  trust  money,  251. 

misapplying  funds,  251. 
buying  trust  estate  at  an  under  value,  253. 
letting  insolvent  co-trustee  have  trust  funds,  253. 
mixing  up  trust  funds  with  his  own,  253. 
Trusts,  what,  188. 

nature  of,  190. 

general  rules  relating  to,  190. 
difference  between  executed  and  executory,  190. 
not  liable  to  escheat,  191. 

act  of  limitations  does  not  operate  on  express,  192. 
secret,  not  recognised,  193. 
what  amounts  to  a  declaration  of,  193. 
is  a  resulting,  199. 

trust  by  implication,  199. 
when  to  be  executed,  225. 
Tythes,  what,  5.     See  Tithes. 

u. 

Underwood,  what,  21. 
Universities,  what,  101. 

of,  their  courts  and  privileges,  102. 

conusance  of  jurisdiction,  how  to  be  demanded,  106. 

by  whom  to  be  demanded,  106. 
of  their  privileges  with  regard  to  presentation  to  the  livings  of  papists,  107. 
Uses,  what,  111. 

incidents  of,  111. 
origin  of,  113. 
alienable,  113. 

property  of  an  estate  in,  at  common  law,  113,  114. 

by  statute,  115. 

is  descendible,  119. 
devisable,  122. 
not  extendible,  124. 
not  forfeitable,  124. 
not  liable  to  dower,  124. 
inconveniences  of,  125, 

alteration  in  conveyances  to,  by  stat.  27  II.  8,  c.  10,  126. 
of  the  several  sorts  of  conveyances  to,  129 
deeds  declaring  the,  of  feoffments,  130. 

fines,  130. 
recoveries,  130. 
who  may  declare,  130. 
to  whom,  may  be  declared,  132. 
how  declared,  133. 
when  to  be  declared,  134. 
in  what  cases  averments  may  be  made  of,  135. 

what  consideration  necessary  to  a  covenant  to  stand  seised  to  uses,  140. 
by  what  words  a  man  may  covenant  to  stand  seised  to  uses,  144. 
several  kinds  of,  149. 
in  possibility,  149. 
cases  out  of  the  statute  of,  167. 
terms  in  gross  may  be  limited  to  uses,  173. 
resulting,  what,  176. 
by  implication,  176. 
of  shifting,  1S4. 
manner  of  pleading,  187. 
Uses  and  Trusts,  111.     See  Uses;    Trusts. 
Usury,  what,  204. 

at  common  law,  what,  264. 

by  statute,  265. 

an  agreement  required  to  constitute,  272. 

what  contract  is  affected  with,  273,  274. 


598  INDEX. 

Usury,  charge  of  commissions  when  not,  281. 

it  is,  281. 
fair  purchase  of  a  bond  or  note  is  not,  281. 
to  constitute,  the  contract  must  be  usurious  in  its  inception,  283. 
there  must  be  a  loan,  284. 

unlawful  interest  reserved,  284. 

an  agreement  that  the  money  shall  be  returned,  • 

284. 
an  intention  to  violate  the  law,  284. 
what  hazard  will  take  the  contract  out  of  the  statute  of,  285. 
in  what  cases  securities  shall  be  avoided  in  consequence  of,  287. 
relief  given  on  contracts  tinctured  with,  293. 
how  far  securities  affected,  295. 
pleadings  in  cases  of,  299. 
trial  and  evidence  in  cases  of,  304. 

V. 

%  Venue,  what,  364. 

when  necessary,  364. 

not  required,  365. 
sufficiently  laid,  365. 
what  is  a  proper  laying  of  the,  366. 
may  be  changed,  when,  370. 

in  what  cases,  370. 
when  there  can  be  no  change  of,  372. 
Verdict,  what,  300. 

de  bene  esse,  what,  307. 
privy,  what,  308. 
general,  what,  308. 

effect  of,  363. 
special,  what,  309. 

province  of  the  court  on,  313. 
when  bad,  for  misbehaviour  of  a  juror,  316. 
power  of  the  jury  over,  315. 

when  bad,  for  misbehaviour  of  one  of  the  parties,  321. 
on  informal  issue,  effect  of.  323. 
immaterial  issue,  effect  of,  323. 
insensible  issue,  effect  of,  326. 
insufficient  issue,  effect  of,  326. 
of  a,  which  does  not  find  all  that  is  in  issue,  327. 
of  a,  which  finds  a  thing  not  in  issue,  330. 
of  a,  which  varies  from  the  issue,  332.  _ 

in  assumpsit,  332. 
case,  oo4. 
covenant,  335. 
debt,  335. 
ejectment,  337. 
replevin,  339. 
trespass,  340. 
other  actions,  341. 
criminal  prosecutions,  342. 
of  a,  where  the  words  modo  et  forma,  are  contained  in  the  traverse  upon 

which  issue  is  joined,  343. 
of  a,  which  does  not  find  the  matter  in  issue  with  certainty,  340. 
of  a,  which  does  not  find  the  matter  in  issue  expressly,  348. 
of  a,  which  finds  a  matter  in  a  foreign  country,  349. 
of  a,  which  contrary  to  a  matter  of  estoppel,  352. 
of  a,  which  contrary  to  a  matter  of  record,  351. 

of  a,  contrary  to  something,  confessed  or  not  denied  in  the  pleadings,  353. 
what  omission  in  the  pleadings  is  cured  by,  354. 

copy  of  the  issue  is  cured  by,  359. 
how  far  a,  establishes  rocitals  in  a  deed,  361. 
may  be  taken  after  death  of  a  sole  plaintiff,  when,  363. 
in  what  currency  to  be  given,  363,  364. 
in  trover,  how  to  be  entered,  364. 


INDEX.  599 


Yicinetum,  what,  3G4. 
Void,  what,  374. 

difference  between  voidable  and,  374. 
what  acts  are  absolutely,  374. 

is  to  all  purposes,  374. 
acts  of  infant,  when,  374. 

feme  covert,  when,  374. 
probate  of  a  will  of  feme  covert,  is,  375. 
bond  for  a  purpose  malum  in  se,  375. 

malum  prohibitum,  375. 
ministerial  acts,  when,  375. 
agreement  in  restraint  of  trade,  376. 

for  sale  of  an  office,  is,  376. 
what  acts  are  void  as  to  some  purposes  only,  377. 
what  acts  are  void  as  to  some  persons  only,  378 
acts  by  operation  of  law,  when  made  valid,  378. 
Voidable  acts,  how  made  valid,  380. 
avoided,  381. 
by  whom  avoided,  382. 
Voluntary  waste  what,  422. 

w. 

Wager  of  law,  what,  383. 

in  what  actions  allowed,  383. 
reasons  for  allowing,  383. 
manner  of,  384. 
when,  385, 
in  what  allowed,  386. 
to  whom  allowed,  390. 
against  whom  allowed,  391. 
when  defendant  is  not  entitled  to,  392. 
Warranty,  what,  394. 

*    kinds  of,  394. 

to  what  things  a.  may  be  annexed,  395. 
what  clauses  in  deed  will  make  a,  396. 
deemed  a  good,  in  a  deed,  397. 
in  law,  400. 
alterations  by  statute  respecting,  403. 
effects  of,  in  a  deed,  406. 
what  use  may  be  made  of  a,  in  deed,  407. 
who  may  take  advantage  of  a,  409. 
who  liable  on  a,  409. 
when  avoided,  413. 
how  expounded,  416. 
in  the  sale  of  personal  chattels,  418. 
express,  of  personal  chattels,  418. 
implied,  of  personal  chattels,  418,  419. 
when  the  action  of,  shall  be  in  the  tenet,  454. 

tenuit,  456. 
judgment  in  actions  of,  461. 
when  restrained  by  injunction,  464,  467. 
what  relief  equity  will  give  in  cases  of,  474. 
Waste,  what,  420. 

on  what  subjects  committed,  421. 
several  kinds  of,  422. 
what  acts  shall  be  deemed,  422. 
in  lands,  what,  423. 

trees,  woods,  &c,  what,  424. 
digging  gravel,  mines,  &c,  what,  427. 
gardens,  what,  428. 
orchards,  what,  428. 
fish-ponds,  what,  428. 
dove-houses,  what,  428. 
parks,  what,  428. 
meadows,  what,  428. 


600  INDEX. 

Waste,  in  houses,  what,  429. 

removal  of  fixtures,  when,  431. 
by  ecclesiastical  persons,  what,  434. 
what  is  excusable,  434. 
justifiable,  435. 
who  may  bring  an  action  of,  438. 
against  whom  an  action  of,  may  be  brought,  438,  440. 
when  executors  liable  for,  447. 
when  an  action  of,  may  be  brought,  448. 
process  and  proceedings  in,  451. 
Will,  what,  478,  479. 

difference  between  testament  and,  479. 
what  paper  will  amount  to  a,  480. 
who  may  make  a,  481,  484. 

infant,  when,  481. 
feme  covert,  when,  481. 
lunatic,  when,  482. 
non  compos,  when,  483. 
drunkard,  when,  483. 
alien  enemy,  when,  484. 
traitor,  when,  484. 
suicide,  when,  484. 
heretics,  when,  484. 
•equisites  of,  485. 

1.  a  legal  testator,  485. 

2.  a  devisee,  485. 

3.  an  intention  to  make  a,  485. 

4.  testator  must  be  free,  486. 

5.  must  be  in  form,  487. 
kinds  of,  487.  _ 

in  writing,  487. 

1.  to  pass  lands,  488. 

2.  to  pass  goods,  514. 

3.  what  is  proof  of,  517. 
nuncupative,  529. 

nature  and  effect  of,  532. 
how  construed,  533. 
avoided,  540. 

revoked,  541.     See  Revocation. 
Witness  to  a  will,  who  may  be,491,  493,  497,  517  to  529. 

number  required,  500. 
Wood,  when  tithable,  17. 
Woodland,  when  it  i-s  no  waste  to  clear,  438. 
Wool,  when  tithable,  25. 
Words,  meaning  of,  126. 

person,  126. 

seised,  126. 

hereditaments,  120. 

lawful  seisin,  state  and  possession,  127. 

impeachment  of  waste,  467. 

acquitto,  396. 

dejendo,  396. 

concessi,  396,  400. 

demist,  396. 

grant,  bargain,  and  sell,  396. 

seised  of  an  indefeasible  estate  in  fee-simple,  397. 

dedi,  400. 

assigns,  410. 

and,  539. 

or,  539. 
Writing,  in  what,  a  will  may  be,  490. 

Y. 

Young  of  animals,  when  tithable,  24. 


^GENERAL   INDEX. 


A. 

Ab  initio,  who  is  a  trespasser,  ix.  448. 
Abandonment,  what,  vi.  G80. 

when  required,  vi.  680. 

not  required,  vi.  081. 
to  be  made,  vi.  682,  684. 
acceptance  of,  vi.  682. 
effect  of,  vi.  688. 
of  an  assignment,  what,  i.  388. 
Abatement,  what,  i.  1. 

^1oas  in,  to  the  jurisdiction  of  the  court,  i.  1. 
person  of  the  plaintiff,  i.  2. 
person  of  the  defendant,  i.  5. 
demise  of  the  king,  i.  11. 
death  of  parties,  i.  11. 
by  reason  of  coverture,  i.  18. 
defect  in  writ,  i.  20. 
another  action  pending,  i.  28. 
of  writ  of  error,  iii.  352. 
in  partition  there  is  no,  v.  294,  297. 
in  trespass,  ix.  514. 
of  legacies,  what,  vi.  298. 
there  is  no,  of  specific  legacies,  vi.  298. 
of  legacy  to  executor  for  his  pains,  vi.  300. 
for  piety,  vi.  299. 
Abbot,  power  of,  to  make  leases,  v.  480. 
Abduction,  offence  of,  vi.  482. 
Abeyance,  remainders  in,  viii.  337. 
Abortion,  effect  of  an  attempt  to  procure,  vii.  186. 
Absence  when  a  forfeiture  of  office,  vii.  322. 

not,  vii.  311. 
Acceptance,  effect  of,  vi.  780. 

supra  protest,  vi.  787,  807. 

what  is  good,  vi.  798. 

implied,  vi.  800. 

who  bound  by,  vi.  802. 

by  agent,  vi.  802. 

effect  of  qualified,  vi.  803. 

after  dishonour,  vi.  804. 
special,  vi.  804. 
bv  intei'vention,  vi.  808, 
effect  of,  vi.  809. 

of  rent,  a  waiver  of  right  of  re-entry,  v.  669. 
Acceptor,  when  discharged,  vi.  811. 

accommodation,  how  far  liable,  vi.  813. 
effect  of  discharge  of,  vi.  816. 
Accessaries,  in  manslaughter  there  are  no,  vii.  205. 

process  of  outlawry  against,  vii.  334. 
Accession,  who  entitled  to  the,  of  swans,  viii.  24. 
Accident  is  not  a  battery,  i.  372. 

jurisdiction  of  chancery  as  to,  ii.  688. 

Vol.  X.— 76  3  E  (001) 


602  GENERAL   INDEX. 

Accidental  stroke,  effect  of,  ix.  462. 

Accommodation  notes  and  bills  may  be  proved  against  the  estate  of  bankrupt,  when, 

i.  701,  808. 
acceptor,  when  liable,  vi.  813. 
Accomplice  can  be  a  witness,  when,  iii.  485. 
Accompt,  what,  i.  43. 

against  whom  it  lies,  i.  44. 
Accord  and  satisfaction,  what  is,  i.  54. 

how  pleaded,  i.  61. 
when  a  good  plea,  ii.  614. 

not  a  good  plea,  vii.  597. 
case  of,  iv.  124. 
Account,  what,  i.  43. 

against  Avhom  it  lies,  i.  44. 
bill  for  an,  vi.  562. 
by  mortgagee,  how  made,  vii.  164. 
stated,  when  assumpsit  lies  on,  i.  396. 
of  burial  fees,  when  evidence,  iii.  574. 
Accounts  of  churchwardens,  ii.  245. 
Accrue,  when  right  of  action  is  said  to,  vi.  381. 
Accumulative  legacy,  what,  vi.  298. 

when  bequeathed  in  same  writing,  vi.  298. 

different  writings,  vi.  298. 
Acid  spirit  of  sulphur,  buildings  for  manufacture  of,  a  nuisance,  vii.  229. 
Acknowledgment  of  deeds  by  wife,  effect  of,  ii.  49. 

a  debt,  effect  of,  vi.  370,  400,  401. 
what  is,  vi.  402. 
to  a  stranger,  effect  of,  vi.  403. 
Acquiescence  of  husband  not  binding  upon  the  wife,  ii.  53. 

in  partition,  effect  of,  ii.  362. 
Act  of  bankruptcy,  what  is  an,  i.  641,  798. 

departing  the  realm  an,  i.  642. 
remaining  abroad  an,  i.  643. 
debtor  absenting  himself  an,  i.  645. 
beginning  to  keep  house  an,  i.  646,  803. 
debtor  suffering  himself  to  be  arrested,  i.  648,  649,  803. 

outlawed,  i.  648. 
procured  his  goods  to  be  sequestered,  i.  648. 
convey  his  property,  i.  648,  649,  803. 
what  an,  without  reference  to  intent,  i.  652. 
relation  of,  i.  746. 
God,  what,  ii.  154. 

its  effects,  ii.  335. 

when  rent  is  apportioned  by  the,  viii.  520. 
law,  its  effects,  ii.  337. 

when  rent  is  apportioned  bj,  viii.  520. 
parties,  its  effects,  ii.  338. 
infant,  when  void  or  voidable,  v.  117. 
how  avoided,  v.  138. 
confirmed,  v.  141. 
parliament,  when  repealed,  effect  on  covenant,  ii.  590. 
covenantee,  when  an  excuse  for  non-performance  of  the  covenant,  ii.  593. 
covenantor,  when  a  sufficient  evidence  of  a  breach  of  covenant,  ii.  595. 
of  a  stranger,  when  good,  ii.  341. 
in  pais,  what,  v.  125. 

when  binding  on  infant,  v.  125. 
not  binding,  v.  125. 
Acts  of  legislature,  how  proved,  iii.  533. 

parliament,  when  binding  on  the  king,  viii.  92 ;  what,  ix.  217. 
Congress,  how  passed,  ix.  213,  214. 
Action  of  covenant,  when  a  proper  remedy,  ii.  559. 
when  prematurely  brought,  effect  of,  ii.  516. 
upon  the  31  Eliz.  c.  5,  pleadings  in,  ix.  27. 
Actions,  one  to  abate  when  two  are  brought  for  the  same  thing,  i.  28. 
different  kinds  of,  i.  63. 


GENERAL  INDEX.  603 

Actions,  in  what  cases  they  will  lie,  i.  66. 

■what  things  may  be  joined  in  the  same,  i.  69. 

local  and  transitory,  i.  78. 

qui  tain,  in  what  cases  they  lie,  i.  88. 

on  the  case,  i.  102. 

by  assignee  of  bankrupt,  i.  751. 

by  administrator  de  bonis  non,  iv.  25. 

when  several  causes  of,  may  be  joined,  iv.  127,  133. 

may  be  sustained  by  heir  in  right  of  ancestor,  when,  iv.  614. 

aga'inst  the  hundred,  under  the  statutes  of  hue  and  cry,  when  to  be  brought, 

iv.  705. 
on  penal  statutes,  limitation  of,  vi.  371. 
of  assault  and  battery,  limitation  of,  vi.  372. 
slander,  limitation  of,  vi.  372. 

trespass,  detinue,  trover,  replevin,  account,  and  case,  limitation  of,  vi.  375. 
debt  on  award,  limitation  of,  vi.  377. 
on  foreign  judgment,  limitation  of,  vi.  378. 

contract  founded  in  maleficio,  limitations  of,  vi.  375. 
equitable  demand,  limitation  of,  vi.  378. 
when  prematurely  brought,  vi.  825. 
upon  judgments,  costs  in,  ii.  533. 
for  violation  of  patent  right,  viii.  134. 

evidence  in,  viii.  134. 
declaration  in,  viii.  134. 
by  assignee  of  a  part,  viii.  135. 
jurisdiction  of  courts  in,  ii.  810, 
of  debt,  what  may  be  set  off  in,  viii.  641. 
by  and  against  sheriff,  viii.  720. 
removal  of,  to  U.  S.  courts,  ii.  810. 
Actionable  words,  what,  ix.  33. 

charging  crimes,  ix.  33. 

treason,  ix.  33. 
murder,  ix.  33. 
perjury,  ix.  34. 
forgery,  ix.  37. 
burning  barn,  ix.  40. 
fornication,  ix.  41. 
adultery,  ix.  42. 
regrating,  ix.  42. 
vagrancy,  ix.  44. 
illegal  voting,  ix.  44. 
embracery,  ix.  44. 
charging  contagious  distemper,  ix.  45. 
an  officer,  ix.  45. 
a  trustee,  ix.  45. 
a  tradesman,  ix.  48. 
a  clergyman,  ix.  48. 
a  physician,  ix.  48. 
an  attorney,  ix.  50. 
Acliones  nominatce,  what  are,  ii.  682. 
Actus,  what,  iv.  665. 

Addition,  in  pleading,  want  of,  its  effects,  i.  9. 
required  in  an  indictment,  v.  73. 
to  writing,  effect  of,  iii.  601. 
of  estate  or  degree,  vii.  9. 

mystery,  vii.  12. 
which  is  a  conveyance  to  the  action,  vii.  13. 
want  of,  how  to  be  taken  advantage  of,  vii.  19. 
Ademption,  what,  vi.  198. 

when  there  is  an,  of  stock,  vi.  207. 
goods,  vi.  208. 

share  in  a  partnership,  vi.  208. 
Adhering  to  the  king's  enemies,  treason,  ix.  398. 
Adjective  words,  how  construed,  ix.  78. 
Adjournment  of  parliament,  how  made,  ii.  675. 
Adjustment,  effect  of,  vi.  677. 


, 


604  GENERAL  INDEX. 

Administration  purges  the  wrong  of  executor  de  son  tort,  •when,  iv.  32. 
by  whom  to  be  granted,  iv.  43. 
in  peculiar  jurisdiction,  iv.  49. 
form  of  taking  out,  iv.  50. 
what  is  an  acceptance  of,  iv.  54. 
bond,  when  to  be  given,  iv.  56. 

form  of,  iv.  56. 
may  be  revoked,  when,  iv.  60. 
to  whom  granted,  iv.  65. 
to  one  or  more  persons,  iv.  68. 
for  one  thing  or  all  the  estate,  iv.  68. 
Administrator,  definition  of,  iv.  5. 

in  Maryland,  person  of  colour  cannot  be,  iv.  8. 

alien  may  be,  iv.  8. 

different  kinds  of,  iv.  17. 

durante  minoritate,  who  may  be,  iv.  15. 

what  he  may  do,  iv.  16. 
his  authority  determines  when,  iv.  19. 
de  bonis  non,  when  to  be  appointed,  iv.  23. 
to  what  entitled,  iv.  24. 
for  what  liable,  iv.  24. 
actions  by,  iv.  25. 
pendente  lite,  iv.  34. 
foreign,  power  of,  iv.  46. 
acts  of,  when  valid,  iv.  61. 
distinction  between  executor  and,  iv.  133. 
one  of  several,  may  plead  the  act  of  limitation,  vi.  405. 
is  not  bound  to  plead  the  act  of  limitation,  vi.  406. 
when  scire  facias  will  lie  against,  viii.  609. 
Admiralty  jurisdiction  of  D.  C,  ii.  815  ;  vii.  445  ;  viii.  19. 

ordinary,  ii.  815. 

in  prize  suits,  ii.  815. 
cases  of  salvage,  ii.  816. 
cases  of  torts,  ii.  816. 
on  contracts,  ii.  816. 
extraordinary,  ii.  817. 

in  cases  of  seizure  under  the  impost  laws,  ii.  817. 
captures  in  U.  S.,  ii.  818. 
court  of,  ii.  733. 

jurisdiction  of,  ii.  734. 

over  what  places,  ii.  735. 
things,  ii.  736. 
contracts,  ii.  739. 
by  what  law  it  proceeds,  ii.  744. 
in  what  form,  ii.  744. 
Advancement,  what,  iv.  97  ;  vi.  216. 

to  Avhat  it  must  be  charged,  iv.  97. 
charges  when  an,  iv.  97. 
depends  upon  circumstances,  iv.  99. 
when  it  is  a  resulting  trust,  iv.  99. 
profits,  not  an,  iv.  98. 
by  the  custom  of  London,  iii.  43. 
what  is  a  trust,  find  what  an,  x.  209. 
Adultery  of  the  wife,  effect  of,  as  to  the  husband's  liability  for  necessaries  furnished 
to  her,  ii.  39,  45. 
how  punished  in  ecclesiastical  courts,  viii.  57. 
Admittance  of  copyholder,  ii.  389.^ 

what  acts  amount  to.  ii.  399. 

difference  between  surrender,  presentment,  and,  ii.  400. 
time  of  making,  ii.  -in I. 
,\d verse  possession,  effect  of,  vi.  307,  370. 

against  tenant  in  common,  A'i.  369. 
what  is,  vi.  370. 
Advertisement  in  newspaper,  when  continuance  in  is  wrong,  iii.  26. 
Affecrment,  when  required,  iv.  241. 


GENERAL  INDEX.  605 

Affoorment,  by  whom  to  be  made,  iv.  243. 
Affidavit,  what,  i.  14G. 

manner  of  taking,  i.  14G. 
when  necessary,  i.  150. 
defective,  i.  152. 
to  hold  to  bail,  when  good,  i.  539. 

when  made  before  a  foreign  magistrate,  i.  541. 
when  evidence,  iii.  559,  564. 
Affirmation,  form  of,  iii.  512. 
Affirmative  covenants,  what,  ii.  551. 
pleas,  what,  vii.  591. 

to  be  actionable,  how  far  words  must  be,  ix.  G9. 
statutes,  what,  ix.  234. 
After-purchased  lands,  devise  of,  void,  vi.  159. 

born  children,  when  to  take  as  remainder-men,  vi.  313. 
Age,  what  is  full,  v.  98. 

its  effects  upon  dower,  iii.  192. 
Agents,  how  they  ought  to  contract,  i.  157. 

when  liable  for  money  had  and  received,  i.  405. 
how  appointed,  i.  520.     See  Attorney  in  Fact. 
in  what  name  to  make  contracts,  i.  525. 
when  they  may  transfer  their  power,  i.  526. 
power  of,  how  revoked,  i.  528,  529. 
Agent,  authority  of,  vi.  558. 

may  sign  and  endorse  notes,  when,  vi.  558,  560. 
who  makes  insurance  may  abandon,  vi.  559. 
recognition  of  his  acts,  effect  of,  vi.  559. 
to  receive  rents  may  determine  the  tenancy,  vi.  559. 
cannot  exceed  his  authority,  vi.  561. 
delegate  his  authority,  vi.  561. 
act  adversely  to  his  principal,  vi.  573. 
when  personally  liable,  vi.  564,  572. 
may  sue,  when,  vi.  568. 
public,  not  liable,  vi.  569. 
must  obey  instructions,  vi.  572. 
Agistment,  what,  x.  12. 

when  tithable,  x.  12. 
"  Agreed,"  effect  of  this  word  in  a  lease,  v.  564. 
Agreement,  what,  i.  153. 

who  are  capable  of  making,  i.  154. 

when  decreed  in  specie  in  equity,  i.  158. 

unreasonable  and  fraudulent,  i.  158. 

entered  into  ex  turpis  causa,  void,  i  167. 

voluntarv,  when  valid,  i.  165. 

what  are*  within  the  statute  of  frauds,  and  perjuries,  i.  170.     See  Statute 

of  Frauds. 
by  executors  and  administrators,  when  binding,  i.  172. 
to  pay  the  debt  of  another,  i.  173. 
made  in  consideration  of  marriage,  i.  176. 
entire,  must  be  completed  to  entitle  plaintiff  to  recover,  i.  411. 
concerning  tithes,  effect  of,  x.  72. 
when  usurious,  x.  268. 
Aid  prier,  nature  of,  vii.  632. 

Alehouses,  how  far  inns  are  within  statutes  respecting,  V.  226. 
Alia  enormia,  what  may  be  given  in  evidence  under,  ix.  50;>. 
Alias  dictus,  effect  of,  vii.  8. 
Aliens,  who  are,  i.  193. 
friend,  i.  210. 
enemy,  i.  210. 
disadvantages  of,  i.  201. 
cannot  inherit,  i.  202. 

rule  on  this  subject  in  some  of  the  American  State1?,  i.  202. 
cannot  hold  lands,  i.  203. 

be  endowed,  i.  206. 
how  far  subject  to  the  laws,  i.  208. 

3e2 


606  GENERAL  INDEX. 

Aliens,  what  actions  they  may  maintain,  i.  210. 
cannot  be  admitted  as  attorneys,  i.  483. 
■when  they  may  sue  in  D.  C,  ii.  818. 
cannot  sit  in  parliament,  ii.  061. 
enemy  cannot  make  a  will,  x.  484. 
how  to  be  tried,  v.  359. 

cannot  be  devisees,  when,  vi.  10.     See  Enemy. 
merchants  allowed  to  trade,  vi.  554. 
may  sue,  when,  vi.  555. 

be  arrested,  when,  i.  210. 
act  as  attorneys  in  foot,  i.  520. 
be  endowed,  when,  iii.  192. 
be  executors  or  administrators,  iv.  8,  9. 
take  leases,  vi.  555,  556. 
be  made  bankrupts,  vi.  555. 
hold  property,  vi.  556. 
be  guilty  of  treason,  ix.  382. 
to  what  duties  liable,  ix.  130. 
Alienage,  a  good  plea  in  abatement,  i.  3. 

a  good  ground  of  challenge  to  a  juror,  i.  207. 
when  it  may  be  pleaded,  i.  214. 
Alienation,  conditions  in  restraint  of,  when  good,  v.  670. 

void,  viii.  393. 
All  actions  and  suits,  effect  of  release  of,  viii.  286. 
Allegiance,  what,  viii.  46. 

all  subjects  bound  by  their,  viii.  47. 

citizens  of  the  United  States  cannot  cast  off  their,  viii.  48. 
Allodarii,  who  are,  ix.  362. 
Allowance  what  made  to  bankrupt,  i.  771,  805. 
to  trustees,  when  to  be  made,  x.  260. 
Alluvion,  what,  ii.  735. 

rights  of  king  to,  viii.  19,  22. 
Almanac,  writing  in,  evidence  of  pedigree,  iii.  579. 
Alteration  in  writing,  effect  of,  iii.  603. 
a  note,  effect  of,  vi.  847. 
policy,  when  material,  vi.  638. 
a  bond,  when  allowed,  vii.  273. 
a  will,  effect  of,  x.  590. 
Alternate  bequest,  effect  of,  vi.  117. 
Altum  mare,  what,  ii.  737.     Vide  High  Seas. 
Ambassador,  who  is,  i.  215,  219. 

what  suits  he  may  bring,  i.  216. 
not  amenable  to  the  laws,  when,  i.  216. 
may  be  suspended,  or  required  to  depart,  i.  217. 
those  in  the  train  of  an,  equally  exempted,  i.  220,  221. 
how  protected  in  the  United  States,  i.  221. 
privilege  of,  cannot  be  waived,  i.  222. 
residing  abroad  may  be  elected  to  parliament,  ii.  667. 
Ambiguitj7  may  be  explained  by  parol  evidence,  when,  iii.  605,  606. 
Amendments,  i.  222. 

at  common  law,  i.  223. 
of  declaration,  i.  224. 
statutes  of,  and  jeofails,  i.  226. 
of  criminal  proceedings,  when,  i.  237. 
civil  proceedings,  i.  239. 
original  process,  i.  239. 
imparlance  roll,  i.  242. 
plea  roll,  i.  243. 
jury  process,  i.  243. 
verdict,  i.  246. 
when  they  may  be  made  after  terdict,  i.  247. 
when  aided  by  verdict,  i.  247. 
of  judgments,  when  allowed,  i.  251. 
at  what  time  allowed,  i.  255. 
of  record,  when  defaced,  allowed,  i.  259. 


GENERAL   INDEX.  607 

Amendments,  of  proceedings  in  equity,  i.  259. 
plea,  when  allowed,  vii.  041. 
information,  when  to  he  made,  viii.  105. 
indictment,  when  to  he  made,  v.  87. 
relating  to  jury  when  allowed,  v.  370. 
Amends,  effect  of  tender  of,  ix.  301. 
Amercement,  what,  vii.  183. 

and  fines,  iv.  225.     See  Fines. 
difference  between  fines  and,  iv.  230. 
American  ante-nati,  allegiance  of,  viii.  48. 
Amotion  of  members  of  corporations,  for  what,  ii.  458. 
Amoved.?  manum,  writ  of,  viii.  102. 
Ancient  demesne,  what,  i.  203. 

privileges  annexed  to,  i.  204. 
may  become  a  frank  fee,  i.  200. 
how  pleaded,  i.  207. 
lights,  what,  i.  110. 

injunction  to  restrain  obstructions  to,  v.  209. 
deed,  how  proved,  iii.  599. 
will  how  proved,  iii.  000. 
statutes,  what,  ix.  213. 
Animalia  fructuosa,  what,  x.  14,  15. 
Animallbus  inutilihus,  what,  x.  14. 

iitilibus,  what,  x.  14. 
Animals,  injuries  by,  i.  117,  118. 
when  unsound,  i.  110. 

heir  or  executor  entitled  to,  iv.  83. 
ferce  nalara;  what,  iv.  431,  432. 

when  subject  of  larceny,  iv.  170. 
trover  does  not  lie  for,  ix.  050. 
when  death  is  caused  by,  whether  owner  is  guilty  of  murder,  vii.  180. 
who  is  entitled  to  wild,  viii.  251. 
when  the  young  of,  are  tithable,  x.  24. 
Annual  rests,  when  to  be  made,  vii.  170. 
Annuity,  what,  i.  208. 

in  what  it  differs  from  a  rent,  i.  209. 
how  created,  i.  270. 
remedies  for  the  recovery  of,  i.  273. 
statutory  provisions  in  relation  to,  i.  278. 
of  setting  aside,  i.  280. 
when  it  is  to  commence,  i.  290. 
determine,  i.  290. 
how  principal  of,  to  be  secured,  i.  290. 

belonging  to  a  bankrupt,  when  it  vests  in  his  assignees,  i.  730. 
curtesy  of,  not  allowed,  iii.  8. 
cannot  be  apportioned,  vi.  312;  viii.  481. 
effect  of  specific  bequest  of,  vi.  294. 
Answer  in  equity,  when  amendable,  i.  201,  202. 

evidence,  iii.  550. 
of  one  defendant,  effect  of,  iii.  557. 
required  before  the  dissolution  of  injunction,  v.  219. 
injunction  when  granted  till,  v.  220. 
by  a  corporation,  how  made,  v.  220. 
Antecedent,  rule  of  construction  of,  viii.  400. 
Antiqua  custuma,  what,  ix.  Ill,  118. 
Appeal,  what,  i.  291. 

different  kinds  of,  i.  291. 
of  death,  i.  291. 
larceny,  i.  291. 
rape,  i.  293. 
mayhem,  i.  293. 
in  what  courts  it  may  be  brought,  i.  293. 
who  may  bring  an,  i.  294. 
within  what  time  it  must  be  brought,  i.  295. 
in  what  county  it  must  be  brought,  i.  295. 


60S  GENERAL   INDEX. 

Appeal,  how  to  be  made,  i.  29G. 
writ  of,  i.  296. 

declaration  in  cases  of,  i.  297. 
plea  in,  i.  298. 
false,  how  punished,  i.  298. 
when  it  may  be  taken  in  U.  S.  Courts,  ii.  800. 
from  an  inferior  to  a  superior  ecclesiastical  court,  ii.  723. 
of  mayhem,  who  is  entitled  to,  vi.  408. 

may  be  without  indictment,  v.  51. 
Appearance,  by  an  infant,  i.  231. 

fatal  on  error,  v.  123. 
of  infant,  must  bo  by  guardian  or  prochein  ami,  v.  148. 

wife,  who  is  an  infant,  may  be  by  prochein  ami,  ii.  61. 
in  outlawry,  how  made,  vii.  363. 
its  effect  to  cure  error,  iii.  375. 
Appellate  jurisdiction  of  C.  C.  ii.  812. 

by  writs  of  error,  ii.  812. 
appeals  from  D.  C.  ii.  813. 
certiorari,  ii.  813. 
procedendo,  ii.  813. 
Appendant,  what  is,  iw  533. 

common,  what,  ii.  261. 
Appointment,  when  complete,  vii.  290. 

effect  of  a  bequest  subject  to  power  of,  vi.  268. 
of  tithes  in  a  parish,  effect  of,  x.  32. 
Apportionment  of  contracts,  when  allowed,  i.  414,  415. 
common,  how  made,  ii.  277. 
interest  may  bo  made,  vi.  312 ;  vii.  179. 
dividends,  not  allowed,  vii.  179. 

rent,  when  to  be  made,  viii.  472,  478,  480,  481,  493,  514. 
in  an  annuity  there  is  no,  viii.  481 ;  vi.  312. 
of  rent  in  respect  of  time,  viii.  513. 

the  estate,  viii.  515. 
by  acts  of  the  parties,  viii.  517. 
act  of  law,  viii.  520. 
manner  of,  viii.  522. 
Apprentice,  who,  vi.  500. 

difference  between  servant  and,  vi.  501. 

manner  of  binding,  vi.  501. 

for  what  service,  may  bo  bound,  vi.  508. 

who  can  bind  themselves,  vi.  508. 

power  of  master  over,  vi.  510. 

justices  of  the  peace  may  bind,  vi.  510. 

disputes  between  master  and,  vi.  510. 

cannot  be  compelled  to  work  on  Sunday,  vi.  513. 

for  what  time,  may  be  bound,  vi.  519. 

must  serve  time,  to  be  entitled  to  follow  a  trade  within  the  5  Eliz. 

vi.  520. 
assigning  of,  effect  of,  vi.  526. 
how  taken  care  of,  when  master  dies,  vi.  528. 
dissolution  of  contract  between  master  and,  vi.  530. 
when  master  entitled  to  wages  of,  vi.  534. 
how  bound  in  London,  iii.  49. 
trover  does  not  lie  for  an,  ix.  649. 
Appropriation  of  payment,  when  to  be  made,  vii.  262 ;  iii.  314. 

by  whom  to  be  made,  vii.  262. 
civil  law  as  to,  vii.  262. 
Approvement,  what,  i.  299  to  302. 

and  enclosure  of  commons,  ii.  272. 
Approver,  who  is  an,  i.  299. 

effect  of  accusation  of,  v.  51. 
Appurtenances,  meaning  of,  iv.  520,  533,  690  ;  vi.  136. 
Appurtenant,  common,  what,  ii.  262. 
Arbitrament,  what,  i.  302. 

matter  in  controversy,  i.  303. 
Arbitration,  when  claims  of  bankrupt  may  be  submitted  to,  i.  758. 


GENERAL  INDEX.  609 

Arbitration,  when  executors  may  submit  to,  iv.  101. 
Arbitrators,  who  may  be,  i.  317. 
their  power,  i.  317. 

how  they  must  make  their  award,  i.  318. 
entitled  to  compensation,  i.  322. 

change  of  opinion  of,  does  not  invalidate  the  award,  i.  322. 
misconduct  of,  ground  for  setting  aside  an  award,  i.  365. 
no  bill  will  be  sustained  against,  when  so  agreed,  i.  368. 
Archbishop's  jurisdiction  in  granting  letters  of  administration,  iv.  45. 
Archdeacon,  court  of,  ii.  721. 
Arches,  court  of,  ii.  718. 
Argumentative,  pleas  must  not  be,  vii.  606. 
Arm  of  the  sea,  jurisdiction  over,  vii.  446. 
right  to  fish  in,  vii.  455. 
effect  of  grant  of,  vii.  521. 
Arms,  papists  not  allowed  to  keep,  vii.  374. 
Arrears  of  a  debt,  what  passes  by  a  bequest  of,  vi.  195. 

annuity  cannot  be  apportioned,  vi.  312. 
Arrest  by  private  person,  effect,  ix.  464,  468,  469. 

at  request  of  bailiff,  ix.  465. 
on  Sunday,  effect  of,  ix.  407. 

in  civil  cases,  void,  i.  601. 
a  justice  of  the  peace  may  make  an,  ix.  470. 

soldiers  are  free  from,  ix.  166.  _       .... 

whether  the  defendant  can  be  twice  arrested  for  the  same  cause  of  action,  i.  54o. 
cannot  be  arrested  on  a  new  promise  to  pay  a  debt,  after 
being  discharged  under  the  insolvent  laws,  i.  545. 
what  makes  an,  i.  600. 
of  aliens,  when,  i.  210. 
when  constable  is  required  to  make,  ii.  348. 
witnesses  and  parties  not  liable  to,  ii.  633,  634. 
who  is  privileged  from,  viii.  158.     See  Privilege,  Witness. 

officers,  when,  viii.  158,  164. 
persons  attending  court,  viii.  168. 
duty  of  sheriff  on,  viii.  712. 
Articles,  what  so  called  in  Chancery,  iii.  526. 
perishable,  meaning  of,  vi.  676. 
of  war,  English,  ix.  164. 
Assault  and  battery,  i.  370. 

what  is  an  assault,  i.  371. 

a  battery,  i.  371. 
how  charged,  i.  372. 
justified,  i.  373. 
punished,  i.  378. 
costs  in  an  action  of,  ii.  497. 
in  consequence  of  gaming,  how  punished,  iv.  459. 
limitation  on  actions  of,  vi.  374. 
Assent  of  executor  to  a  legacy,  effect  of,  vi.  331. 
implied,  what,  vi.  331,  332. 
that  first  taker,  shall  take,  effect  of,  vi.  332. 
husband,  effect  of,  x.  482. 
Assessing  damages,  how,  iii.  60. 

pursuant  to  plaintiff's  right,  iii.  68. 
jointly  and  severally,  iii.  72. 
manner  of,  iii.  78. 
Assets,  what  are,  in  the  hands  of  executor,  iv.  72. 

heir,  iv.  629. 
equitable,  how  distributed,  iv.  111. 
how  marshalled,  iv.  114. 
Assignee,  rights  of,  i.  384,  387. 

of  bankrupt,  rights  of,  i.  717. 

official,  under  the  stat,  1  &  2  W.  4,  i.  796,  797. 

of  bankrupt,  choice  of,  i.  677. 

rights  of,  i.  677,  804,  805. 
duties  of,  i.  677. 

Vol.  X.— 77 


610  GENERAL  INDEX. 

Assignee,  of  bankrupt,  may  compound  debts,  when,  i.  813. 

redeem  pledges,  when,  i.  813. 
effect  of  deeds  of,  i.  815. 
covenantor,  when  liable,  ii.  308,  566. 
bankrupt,  when  liable  for  rent,  ii.  570. 
mortgagee,  how  to  foreclose  mortgage,  vii.  160. 

account,  vii.  163. 
a  bond,  rights  of,  vii.  238. 
Assignment,  what,  i.  379. 

of  what  things  it  may  be,  i.  379. 
manner  of  making  an,  i.  383. 
voluntary,  i.  385. 
compulsory,  i.  390. 

when  it  shall  be  considered  complete,  i.  385. 
conditions  in  an,  i.  387. 
abandonment  of,  i.  388. 
preferences  in,  i.  388. 
fraud  in,  i.  389. 
equitable,  its  effects,  i.  403. 
when  it  is  a  breach  of  condition,  ii.  309. 
of  breach  of  covenant,  how  made,  ii.  597. 
dower,  how  made,  iii.  210. 
by  whom,  iii.  210. 
what  court,  iii,  214. 
error,  how  made,  iii.  368. 

in  law  and  fact,  iii.  370. 

for  that  which  is  contrary  to  the  record,  iii.  371. 
for  party's  advantage,  iii.  373. 
of  a  chose  in  action,  by  the  government  of  the  U.  S.,  effect  of,  viii.  156. 
Assignor,  when  liable,  i.  383. 
rights  of,  i.  386. 

continues  liable  after  assignment,  when,  ii.  571. 
Assigns,  meaning  of,  vii.  61. 
Assize,  what,  i.  390. 

form  of  proceedings  in,  i.  390. 
when  it  lies,  i.  392  ;  vii.  305  ;  viii.  496. 
what  seisin  is  sufficient  in  an,  i.  393. 
how  demandant's  title  is  to  be  set  forth  in  an,  i.  394. 
Assumpsit,  what,  i.  395. 

when  the  proper  action,  i.  396. 
lies  on  an  account  stated,  i.  396. 

promise  to  pay  a  specialty,  i.  397,  417. 
does  not  lie  on  lease  for  years,  reserving  rent,  i.  398. 
what  consideration  requisite  to  support,  i.  418. 
indebitatus,  when  it  lies,  i.  452. 
what  to  be  pleaded  in  discharge  of,  i.  459. 
lies  against  a  corporation,  ii.  446. 

executors  for  a  legacy,  when,  vi.  335. 
is  a  proper  remedy  on  a  policy  under  seal,  continued  by  parol  endorse- 
ments, vi.  748. 
when  money  can  be  tendered  in  an  action  of,  ix.  351. 
Attachment,  what,  i.  462. 

when  granted,  i.  462. 

against  sheriffs,  marshals,  and  other  officers,  i.  468. 
parties,  i.  355,  469. 
attorneys,  i.  470. 
witnesses,  i.  470. 
referees,  i.  471. 

printers  and  publishers,  i.  471. 
proceedings  on,  i.  471. 
court  of,  ii.  767. 
in  London,  iii.  51. 

what  goods  and  property  are  subject  to,  iii.  51. 
in  whose  hands  it  may  be  made,  iii.  54. 
when  it  may  be  made,  iii.  54. 
proceedings  in  foreign,  iii.  59. 


GENERAL  INDEX.  611 

Attainder,  effect  of,  viii.  15. 

no  bill  of,  to  be  passed,  viii.  44. 
how  limited,  iv.  338,  349. 
Attaint,  how  j  mishable,  v.  383,  388. 
Attempt  to  commit  a  misdemeanour,  when  indictable,  v.  55. 

not,  v.  78. 
Attestation  clause  in  a  deed,  effect  of,  iv.  220. 

will,  effect  of,  x.  492. 
to  a  will,  effect  of,  x.  490: 

where  to  be  made,  x.  491. 
Attesting  witness,  when  to  be  produced,  iii.  59G,  597. 
who  incompetent  to  be  an,  iii.  597. 
Attornment  to  a  stranger,  when  void,  v.  561. 
Attorney,  who  is  an,  i.  474. 

may  refer  his  client's  cause,  i.  315. 

attachment  for  contempt  against,  i.  470. 

admission  of,  how  made,  i.  474. 

certificates  of,  when  introduced,  i.  478. 

when  several  are  in  partnership  how  far  responsible  for  each  other,  i.  479. 

appearance  by,  when  good,  i.  484. 

retainer  of,  i.  485. 

when  an  attachment  may  be  had  against,  i.  463. 

when  he  must  file  his  warrant,  i.  487. 

when  his  authority  ceases,  i.  488,  489. 

power  of,  i.  489. 

determination  of  the  authority  of  an,  i.  492. 

fees  of,  how  recovered,  i.  494. 

privileges  of,  i.  505 ;  viii.  160,  163,  164. 

cannot  be  arrested,  when,  i.  505,  506. 

compelled  to  serve  as  overseer  of  the  poor,  i.  506. 
punishable,  when,  i.  506,  463. 
may  be  struck  off  the  roll,  when,  i.  509. 
cannot  practise,  when,  i.  509. 
cannot  be  bail,  i.  562. 
when  he  loses  his  privileges,  viii.  174. 
privilege  of,  how  pleaded,  viii.  175,  178. 
can  be  a  witness,  when,  iii.  480. 
cannot  be  compelled  to  serve  as  constable,  ii.  346. 
when  unlawfully  suspended  from  practice,  may  be  restored  by  mandamus, 

vi.  428. 
what  is  slander  of  an,  3x.  50. 

when  a  new  trial  will  be  granted  for  the  neglect  or  mistake  of  the,  ix.  616. 
Attorney  in  fact,  how  appointed,  i.  518. 

implied  authority  of,  i.  519,  523. 
who  may  be,  i.  520. 
infants,  i.  520. 
feme  covert,  i.  520. 

persons  attainted,  outlawed,  or  excommunicated,  i.  520. 
aliens,  i.  520. 

wife  to  make  livery  to  her  husband,  i.  520. 
wife  may  act  for  her  husband,  i.  520. 
effect  of  leases  by,  v.  574. 
cannot  be  appointed  by  wife,  ii.  55. 
Auction  sale  void,  when,  iv.  387. 

Auctioneer's  declaration  cannot  contradict  conditions  of  auction  sale,  iii.  617. 
Audience,  court  of,  ii.  619. 
Audita  querela,  what,  i.  510. 

Avho  may  be  relieved  by,  i.  510. 
infant,  i.  510. 
conusee,  i.  510. 
against  whom  it  may  be  issued,  i.  510. 
baron  and  feme,  i.  511. 
executors,  i.  511. 
in  what  cases  it  will  lie,  i.  511 ;  iii.  322. 
for  matters  which  occurred  after  judgment,  i.  512. 


612  GENERAL  INDEX, 

Audita  querela,  is  not,  per  se,  a  supersedeas,  i.  517,  518. 

when  a  supersedeas,  ix.  283. 
Auditors,  their  powers  and  duties,  in  actions  of  accompt,  i.  51. 
Aula  regis,  when  created,  ii.  G37. 
Author  of  a  libel,  who  is,  vi.  353. 
Authority,  how  to  be  exercised,  vi.  559. 
implied,  vi.  561. 

to  buy,  what  is  sufficient,  vii.  126. 
of  a  court  of  competent  jurisdiction,'  its  effects,  i.  406. 
effect  of  payment  made  under  a  void,  i.  406,  491. 
of  an  attorney  at  law,  i.  485—488,  491,  492. 
what  shall  be  a  determination  of,  i.  492. 
what  is  considered  an,  i.  518. 
implied,  i.  519. 
who  may  execute  an,  i.  520. 
when  well  executed,  i.  520. 

executed  by  agent  in  the  name  of  his  principal,  i.  525. 
cannot  be  transferred,  i.  526. 
joint,  how  executed,  i.  525. 
when  and  how  revoked,  i.  528,  529. 
naked,  when  revoked,  i.  529. 

coupled  with  an  interest,  when  not  revokable,  i.  529,  530. 
may  be  executed  by  wife,  when,  ii.  54. 
to  commit  a  prisoner,  when  lawful,  iii.  392, 
how  executed  by  attorney,  iv.  221. 
of  an  agent,  revoked  by  lunacy,  v.  30. 
justice  of  the  peace^  v.  404. 
coroner,  v.  395. 
how  executed,  v.  572. 
Auxiliary  covenants,  when  extinguished,  ii.  590. 
Averia  camcce,  cannot  be  distrained,  iii,  173. 
Average,  vi.  617. 

kinds  of,  vi.  617. 

mariners  do  not  contribute  to  general,  vi.  618. 
what  shall  contribute  to  general,  vi.  618. 
goods  not  entitled  to  general,  vi.  623. 
loss,  what,  vi.  674. 
effects  of,  ii.  746. 
Averments  required  in  a  declaration,  vii.  483,  491. 
must  be  positive,  vii.  510. 
of  performance  required,  vii.  485. 
conditions  precedent,  vii.  485. 
when  required  in  slander,  ix.  88. 
effect  of,  in  slander,  ix.  73. 
Avoidance,  requisites  of  pleas  in,  vii.  583. 
Avowant,  is  in  the  nature  of  a  plaintiff,  viii.  526. 

tenant  in  common  may  be  an,  viii.  526. 
Avowry,  nature  of,  viii.  526,  558. 

requisites  of,  viii.  558,  561. 
rules  in,  viii.  559. 
parties  to,  viii.  562,  563. 
Award,  what,  i.  302. 

must  be  according  to  the  submission,  i.  323. 
when  to  be  made,  i.  321. 
must  be  certain,  i.  331. 
mutual,  i.  336. 
lawful  and  possible,  i.  339. 
final,  i.  340. 
construction  and  effect  of,  i.  343. 
how  pleaded,  i.  348. 
extinguishes  original  demand,  i.  348 
performance  of,  will  be  compelled  by  attachment,  i.  355. 

by  bill  in  equity,  i.  380. 
in  what  cases,  may  be  relieved  against,  i.  362. 


GENERAL  INDEX.  613 

B. 

Badge  of  fraud,  what  is  a,  iv.  423,  424. 
Bail,  civil,  what,  i.  530. 

how  it  differs  from  mainprise,  i.  530. 
who  may  take,  i.  531. 

when  insufficient,  whether  sheriff  is  liable,  i.  534. 
how  taken,  i.  535. 

for  what  cause  of  action  it  may  be  demanded,  i.  538. 
where  the  demand  is  uncertain,  i.  543. 
when  twice  for  the  same  cause  of  action,  i.  545. 
in  actions  on  statutes,  i.  548. 
who  shall  not  be  required  to  give,  i.  548. 
on  removal  of  a  cause,  i.  551. 
in  error,  i.  552. 

common,  when  required,  i.  557. 

manner  of  putting  in,  excepting  to,  and  justifying,  i.  559. 
who  cannot  be,  i.  562. 
to  what  time,  shall  have  relation,  i.  563. 
when  discharged,  i.  564,  565. 
irregularity  in  taking,  amended,  i.  565. 
proceedings  against,  i.  565. 
when  fixed,  i.  567. 

discharge  of  principal  will  discharge  the,  i.  570. 
in  criminal  cases,  i.  581. 

by  whom  taken  under  laws  of  U.  S.,  i.  581,  588. 
whom  in  N.  Y.,  i.  585. 
in  N.  J.,  i.  585. 
in  S.  C,  i.  585. 
Justices  of  jail  delivery,  i.  587. 
King's  Bench  in  England,  i.  588. 
other  courts,  i.  593. 
House  of  Lords,  i.  593. 
after  conviction,  i.  588. 
taking  insufficient,  punishable,  i.  594. 
in  what  form  taken,  i.  596. 

denying,  delaying,  or  obstructing,  punished,  i.  596. 
discharged  by  certificate  of  bankrupt,  when,  i.  784. 
when  scire  facias  will  lie  against,  viii.  616. 
sheriff  required  to  take,  viii.  712. 
bond,  when  to  be  taken,  viii.  714. 
form  of,  i.  535,  577. 
proceedings  on,  i.  575. 
Balance,  what  passes  by  a  bequest  of,  vi.  195. 
Bailee,  when  he  may  use  the  thing  bailed,  i.  607. 

no  action  lies  against  him,  till  after  demand,  i.  607. 
gratuitous,  when  liable,  i.  608. 
has  a  qualified  property  in  thing  bailed,  i.  609. 
when  guilty  of  felony,  iv.  180,  182. 
cannot  support  replevin,  viii.  553. 
may  maintain  trespass,  ix.  457. 
Bailiff,  what,  i.  598. 

of  liberties  or  franchises,  i.  602. 
to  lords  of  manors,  i.  604. 
how  appointed,  viii.  677. 
lease  made  by,  when  good,  v.  568. 
Bailment,  what,  i.  606. 

of  pledge,  i.  607. 
borrowing  another,  i.  615. 
when  things  bailed  are  lost  or  destroyed,  i.  617. 
how  divided,  i.  621. 
Bank  book,  when  evidence,  iii.  576. 

notes,  when  a  good  tender,  vii.  176 ;  ix.  314,  319. 
Bankrupt,  who  is  a,  i.  628,  798. 

3F 


614  GENERAL  INDEX. 

Bankrupt,  who  are  creditors  of,  i.  659,  684,  801. 

his  property  vested  in  commissioners  and  assignees,  i.  717 

in  a  foreign  country,  how  far  it  passes  to  his  assignees,  i.  731- 
proceedings  against,  i.  806,  811. 
debts  for  which  he  is  not  discharged,  i.  807. 
property,  how  distributed,  i.  765,  809. 

disposed  of,  i.  812. 
partner,  i.  814. 
surplus  of  his  estate,  i.  771. 
allowance  to,  i.  771,  805. 
discharge  of,  i.  771,  807. 
certificate  when  a  bar,  i.  771,  806,  807. 

when  not  a  bar,  i.  799. 
how  he  must  demean  himself,  i.  768. 
who  is  entitled  to  a  legacy  made  to  a,  vi.  312. 
Bankruptcy,  what  is  an  act  of,  i.  641. 

departing  the  realm,  an  act  of,  i.  642. 
remaining  abroad,  i.  643. 
depart  from  dwelling-house,  i.  643. 
debtor  absenting  himself,  an  act  of,  i.  645. 
beginning  to  keep  house  an  act  of,  i.  646. 
debtor  suffering  himself  to  be  arrested,  i.  648. 

outlawed,  i.  648. 
procuring  his  goods  to  be  seized,  i.  648. 
conveying  his  property,  i.  648. 
what  are  acts  of,  without  reference  to  intent,  i.  652. 
relation  of  act  of,  i.  746. 
second,  effects  of,  i.  814. 
proceedings  in,  matter  of  record,  i.  814. 
voluntary,  i.  798. 
involuntary,  i.  798. 

of  partner  dissolves  partnership,  i.  590. 
effect  of,  on  a  mortgage,  vii.  115. 
Banns,  when  required,  vi.  463. 

origin  of,  vi.  463. 
Baptism,  omission  of,  punished,  vii.  375. 
Bar,  what  is,  to  an  action  of  accompt,  i.  50. 
an  insufficient,  i.  249. 
to  an  appeal,  i.  298. 
of  dower,  what  shall  be,  iii.  218. 
what  are  pleas  in,  vii.  531. 
trial  at,  what,  ix.  566. 
Bargain  and  sale,  what,  ii.  1, 

who  may  make  a,  ii.  3. 
what  may  be  the  subject  of,  ii.  5. 
consideration  of,  ii.  7. 
enrolment  of,  ii.  8. 
how  made,  ii.  7. 
how  pleaded,  ii.  12. 
to  uses,  effect  of,  x.  147. 
Bargemen  are  common  carriers,  ii.  151. 
Barn,  rights  of  tenant  who  has  leased  a,  v.  613. 
Baron,  ii.  13.     See  Husband. 
Baronies,  how  created,  ii.  636. 
Barrator,  who  is,  ii.  74. 

proceedings  against,  ii.  75. 
punishment  of,  ii.  76. 
Barratry,  what,  ii.  74  ;  vi.  662,  668. 

when  it  must  happen,  to  make  insurers  liable,  vi.  668. 
insurers  when  not  liable  in  cases  of,  vi.  661. 
Barrister,  what  is  slander  of  a,  ix.  50. 
Bastard,  who  is  a,  ii.  77,  100. 
capacities  of,  ii.  87. 
when  he  can  inherit,  ii.  87. 
bequest  to,  supported  when,  ii.  88. 


GENERAL  INDEX.  615 

Bastard,  has  no  heirs,  ii.  89. 
eigne,  who  is,  ii.  92. 
acknowledgment  of,  effect  of,  ii.  87. 
how  provided  for,  ii.  95. 
settlement  of,  ii.  98. 
murder  of,  ii.  107. 
may  be  a  devisee,  vi.  10. 
when  it  is  actionable  to  call  one  a,  ix.  55. 
Bastardy,  what,  ii.  70. 

how  tried,  ii.  89. 

order  of,  ii.  95,  96,  101. 

who  to  institute  proceedings  in,  ii.  98,  102,  105. 

proceedings  in,  ii.  105. 

who  may  complain,  ii.  105. 
form  of  complaint,  ii.  105. 
before  whom  to  be  made,  ii.  105. 
nature  of  the  prosecution,  ii.  105. 
form  of  the  indictment,  ii.  10G. 
evidence,  ii.  100. 
judgment  in,  ii.  106. 
Battery,  trespass  lies  for  a,  ix.  462. 

committed  by  accident,  consequence  of,  ix.  462. 
by  false  imprisonment,  ix.  462. 
Bawdy-house,  charge  of  keeping  a,  is  actionable,  ix.  44. 
Beacons,  king's  prerogatives  in,  viii.  33. 
Beasts  of  the  plough  cannot  be  distrained,  iii.  173. 
ferce  natures,  cannot  be  distrained,  iii.  171. 
Bees,  when  subject  of  larceny,  iv.  178. 
ownership  of,  iv.  432. 
action  for  taking,  ix.  458. 
when  tithable,  x.  26. 
Beginning  to  keep  house  an  act  of  bankruptcy,  i.  646,  803. 
Belief,  when  the  plaintiff  swears  to  his,  as  to  the  defendant's  indebtedness,  whether 

sufficient,  i.  541. 
Benefit  of  clergy,  when  allowed,  iv.  190. 
abolished,  iv.  191. 

when  party  convicted  of  manslaughter  entitled  to,  vii.  205. 
outstanding  terms,  vii.  118. 
inventory,  what,  iv.  55. 
Betake,  effect  of  this  word  in  a  lease,  v.  601. 
Beyond  sea,  meaning  of,  vi.  392. 

act  of  limitations  does  not  operate  on  persons,  vi.  392. 
Bigamy,  what,  ii.  107. 

punishment  of,  ii.  108. 
evidence  in  cases  of,  ii.  109,  110. 
Bill  of  exchange,  what,  ii.  117  ;  vi.  763. 
nature  of,  vi.  764. 
kinds  of,  vi.  764. 
consideration  of,  vi.  765. 
when  payable,  vi.  766,  767. 
days  of  grace  on,  vi.  767. 
usance  on,  vi.  706. 
inland,  vi.  767. 
stamps  on,  vi.  772. 
negotiable,  vi.  777. 
form  of,  vi.  777. 
must  be  payable  in  money,  vi.  777. 

not  out  of  particular  fund,  vi.  777. 
at  all  events,  vi.  779. 
by  whom  payable,  vi.  785. 

drawer,  vi.  785. 
acceptor,  vi.  785. 
endorser,  vi.  785. 
to  whom  payable,  vi.  788. 
effect  of  endorsement  of,  vi.  788,  790. 


616  GENERAL  INDEX. 

Bill  of  exchange,  what  is  tantamount  to  payment  of,  vi.  833. 
action  on,  vi.  834. 

when  provable  in  bankruptcy,  i.  703,  808. 
exception,  ii.  112. 

when  to  be  granted,  ii.  113. 
by  whom  taken,  ii.  113. 
to  what  it  may  be  taken,  ii.  113. 
not  in  criminal  cases,  ii.  114. 
judge  must  sign,  ii.  114. 

on  the  trial,  ii.  114. 
when  after,  how,  ii.  115. 
how  to  be  taken,  ii.  116. 
how  proved,  ii.  116. 

mandamus  lies  to  common  pleas  to  seal  a,  vi.  429. 
when  a  mandamus  will  lie  to  compel  the  judges  to  sign  a,  vi.  444. 
sale,  what,  ii.  111. 
of  ships,  ii.  112. 
for  gaming  debt,  when  good,  iv.  453. 

not,  iv.  455,  456. 
of  indictment,  how  to  be  found,  v.  53,  54. 
in  chancery,  when  evidence,  iii.  555. 
equity,  when  amendable,  i.  259. 

to  compel  performance  of  award,  i.  360. 
equity  may  be  filed  by  husband  for  himself  and  infant  wife,  ii.  57. 
of  lading,  what,  vi.  757;  ii.  117. 

may  be  assigned,  vi.  757. 
effect  of  assignment  of,  vi.  757. 
endorsement  of,  vi.  758. 
how  passed  in  parliament,  ii.  670. 

when  injunction  lies  to  prevent  the  negotiation  of,  v.  201,  213. 
Binding  apprentice,  manner  of,  vi.  501. 

form  of,  vi.  502,  503. 
Birth,  what,  iii.  16. 

register  of  births,  when  evidence,  iii.  573,  574. 
of  a  child  renders  devise  void,  when,  vi.  159. 
revocation  of  a  will,  when,  x.  570. 
Bishop's  jurisdiction  in  granting  letters  of  administration,  iv.  49. 
Blank,  effect  of  a  bequest  to,  vi.  189. 
endorsement,  effect  of,  vi.  789. 
in  obligation,  when  it  may  be  filled  up,  iii.  603. 
Blind,  effect  of  will  of  one  who  is,  x.  490. 
Blockade,  effect  of,  ii.  750. 

violation  of,  vi.  731. 
Blood,  wbat  shall  work  corruption  of,  iv.  349. 

who  is  of  another's,  vi.  148. 
Bockland,  what,  iv.  490,  491,  493. 
Body,  bringing  in  the,  viii.  718. 
Bog,  when  tenant  may  dig,  x.  428. 
Boilery,  what  passes  by  grant  of,  iv.  530. 
Bona,  meaning  of,  vi.  196. 

peritura,  when  not  to  be  sold  on  credit,  vi.  561. 

plea  in  an  action  of  account,  i.  53. 
notabilia,  what,  iv.  46. 

nature  of,  iv.  47. 
value  of  goods  to  make,  iv.  46. 
Bond,  what,  vii.  237. 

cannot  be  assigned  at  law,  vii.  237. 
may  be  assigned  in  equity,  vii.  237. 
when  a,  will  extinguish  simple  contract,  vii.  237. 

joint  and  several,  vii.  250. 
condition  of,  when  legal,  vii.  259. 
consideration  of,  when  lawful,  vii.  259. 
breach  of  condition  of,  how  assigned,  vii.  261. 
presumption  of  payment  of,  vi.  376. 
for  resigning  benefices,  effect  of,  ix.  13. 


GENERAL   INDEX.  617 

Bond,  for  resigning  benefices,  power  of  court  of  equity  over.  ix.  19. 

when  saved,  ix.  20. 
objections  to,  ix.  22. 
Books  when  they  may  be  inspected,  iii.  581. 

of  original  entries,  when  evidence,  iii.  582,  583. 
corporation  are  evidence,  iii.  580. 
prison  when  evidence,  iii.  580. 
registry  of  births,  &c,  iii.  573,  574. 
bank,  when  evidence,  iii.  576. 
ledger,  when  evidence,  iii.  571. 
log,  when  evidence,  iii.  576. 

shop,  when  evidence,  iii.  582.     See  Almanac,  Family  Bible. 
Borough-English,  what,  ii.  118. 

custom  of,  in  descents,  iii.  111. 
Borrower,  duty  of,  i.  615. 

Bote,  copyholder  may  take  hedge,  house,  and  plough,  ii.  378. 
Bottomry,  what,  ii.  120;  vi.  749. 

condition  of  a  bond  of,  vi.  750,  751. 
bond,  requisites  of,  vi.  751. 
may  be  the  subject  of  insurance,  vi.  640. 
Boundaries  how  ascertained,  iv.  5£2.  523. 

effect  of  misdescription  o/,  v.  633. 
control  courses  and  distances,  viii.  152. 
who  entitled  to  trees  growing  on,  ix.  498. 
Boxing,  consequences  of  death  from,  vii.  203. 
Breach  of  a  condition,  what,  ii.  306. 

when  advantage  can  be  taken  of,  ii.  312. 
what  is  a  dispensation  of,  ii.  315. 
effect  of,  to  reinstate  a  party  who  enters,  ii.  316 
of  covenant,  what,  ii.  592. 

when  well  assigned,  ii.  597. 
condition,  how  to  be  assigned  in  pleading,  vii.  261. 
covenant,  how  stated  in  a  declaration,  vii.  493. 
prison,  what,  vii.  487. 

when  felony,  vii.  179. 
trust,  effect  of,  x.  213. 
Bread,  when  the  adulteration  of,  is  a  nuisance,  vii.  228. 
Breaking,  what,  sufficient  in  burglary,  ii.  132. 
Brewhouse,  when  a  nuisance,  vii.  229. 
Bribery  of  officer,  how  punished,  vii.  324,  325. 
Brickmaker,  when  considered  a  trader,  i.  799. 
Bridges,  repairs  to,  ii.  120. 

when  nuisances,  vii.  227. 
Bringing  money  into  court,  when,  ix.  310.     See  Tender. 

upon  the  common  rule,  ix.  340. 
at  what  time  upon  the  common  rule,  ix.  342. 
pleading,  ix.  344. 
consequences  of,  ix.  345. 
in  what  cases,  ix.  450. 
in  an  action  of  assumpsit,  ix.  351. 
upon  the  case,  ix.  352. 
of  covenant,  ix.  353. 
debt,ix.  354. 
ejectment,  ix.  356. 
against  a  justice  of  the  peace,  ix.  357. 
of  replevin,  ix.  358. 
trespass,  ix.  358. 
trover,  ix.  359. 
British  vessels,  how  registered,  vi.  850. 
Broker,  who  is,  i.  801. 

power  of,  vi.  560. 
may  be  made  a  bankrupt,  i.  639. 
Buggery,  what,  ix.  158. 

derivation  of  the  word,  ix.  158. 
Vol.  X.— 78  3  i  2 


618  GENERAL   INDEX. 

Building,  trespass  to,  ix.  487. 
Burgage,  of  tenure  in,  ix.  378. 
Burglary,  what,  ii.  132. 

breaking  is  sufficient,  ii.  132. 
entry  is  sufficient,  ii.  134. 
shall  be  accounted  night  in  cases  of,  ii.  13&. 
in  what  place  it  may  be  committed,  ii.  136. 
Burglariter,  when  required  in  an  indictment,  v.  68. 
Burial,  fine  for  unlawful,  vii.  375. 
Burning  barn,  charge  of,  actionable,  ix.  40. 
Business  hours,  what  are,  vi.  824,  825. 
Butcher,  when  considered  a  trader,  i.  799. 
Buying  pretended  titles,  offence  of,  vi.  410,  415. 

office,  offence  of,  vii.  296. 
By-law,  what,  ii.  140. 

when  void,  ii.  141,  148,  150. 

in  restraint  of  trade,  ii.  143. 

to  prevent  nuisances,  ii.  146. 

affecting  strangers,  not  valid,  ii.  147. 

how  proved,  iii.  580. 

c. 

Cabinet  of  curiosities,  what  passes  by  a  bequest  of,  vi.  196. 
Cancelling,  surrender  of  lease  cannot  be  by,  v.  658. 
of  a  will,  effect  of,  x.  541,  546. 

prima  facie  evidence  of  revocation,  x.  547. 
Capias  ad  satisfaciendum ,  effect  of  discharge  from,  iv.  151. 

utlagatum,  how  sheriff  to  execute  process  of,  vii.  327. 

effect  of,  vii.  343. 
ad  respondendum,  when  it  may  be  issued,  iii.  694. 
effect  of  arrest  under  a,  iii.  697. 
in  withernam,  when  issuable,  viii.  540. 
Capiatur,  when  to  be  entered,  iv.  229,  230. 
pro  fine,  taken  away,  v.  116. 
when  taken  away  by  statute,  vii.  552. 
Caption  of  an  indictment,  when  requisite,  v.  92. 

form  of,  v.  93,  94. 
Capture  of  ship,  effect  on  seamen's  wages,  vi.  605. 

of  loss  by,  vi.  603. 
Carriages  for  the  use  of  the  king's  forces,  ix.  175. 
Carriers,  who  are  common,  ii.  151.  _ 

when  entitled  to  his  hire,  ii.  152. 
for  what  liable,  ii.  152. 

not  liable,  ii.  152. 
duties  of,  ii.  152. 

notice  given  by,  effect  of,  ii.  157,  159. 
interest  of,  in  property  in  his  charge,  ii.  160. 
regulations  of,  by  act  of  parliament,  ii.  160. 
liability  of,  i.  625. 
when  guilty  of  larceny,  iv.  183. 

trover  lies  against,  ix.  636,  637. 
not,  ix.  660. 
Carrying  away  required  to  constitute  larceny,  iv.  187. 
Cartmen  are  common  carriers,  ii.  151. 
Case,  action  on  the,  i.  102. 

who  may  bring  an,  i.  103. 
against  whom  it  lies,  i.  105. 
for  what  injuries  it  lies,  i.  106. 
when  it  has  accrued,  i.  110. 
for  fraud  and  deceit,  i.  111. 
for  injuries,  i.  117. 

committed  by  officers,  i.  130. 

tradesmen.  L  134. 
for  a  nuisance,  i.  137. 


GENERAL    INDEX.  619 

Case,  action  on  the,  for  a  conspiracy,  i.  138. 

lies  though  there  is  another  remedy,  i.  143.  _ 

the  wrongdoer  be  punishable  criminally,  i.  145. 
when  it  lies  by  or  against  executors,  iv.  126,  138. 
lies  for  the  profits  of  an  office,  vii.  306. 
difference  between  trespass  and,  ix.  440. 
when  a  proper  remedy,  ix.  441,  463. 
when  money  may  be  tendered  in  an  action  on  the,  ix.  352. 
Cashier  of  a  bank,  authority  of,  vi.  558. 
Castle,  curtesy  not  allowed  in  a,  iii.  8. 
dower  not  allowed  in  a,  iii.  196. 
guard,  tenure  by,  ix.  377. 
Cattle  cannot  be  distrained,  when,  iii.  173,  174. 
Caveat  not  to  take  probate  of  will,  iv.  50. 
Cepi  corpus,  writ  of,  vii.  364. 
Cepit,  when  required  in  an  indictment,  v.  68. 

in  alio  loco,  plea  of,  viii.  557. 
Ceremonies  of  marriage,  what,  vi.  462. 
Certain,  to  be  actionable,  how  far  words  must  be,  ix.  71,  72. 
Certainty,  what,  required  in  an  award,  i.  331. 
in  a  grant,  what  is,  iv.  525. 
required  in  a  verdict,  x.  346. 
Certificate  of  bankrupt,  when  a  bar,  i.  771,  806,  807. 

when  not,  i.  799. 
attorney,  when  introduced,  i.  478. 
when  a  cause  may  be  removed  by,  ii.  801. 
trial  by,  ix.  559. 
Certiorari,  what,  ii.  162. 

out  of  what  court  to  issue,  ii.  162. 

when  it  is  a  proper  remedy,  ii.  163. 

rule  as  to,  in  the  several  states,  ii.  163. 

not  a  writ  of  right,  ii.  165. 

may  be  used  to  remove  equitable  proceedings,  ii.  166. 

to  what  court  it  lies,  ii.  167. 

requisites  to  be  performed  before  obtaining  it,  ii.  168. 

return  to,  ii.  170. 

costs  in,  ii.  171. 

not  grantable,  when,  ii.  174. 

to  whom  it  must  be  directed,  ii.  178. 

when  a  supersedeas,  ii.  178  ;  ix.  284. 

not,  ii.  179. 
how  to  be  returned,  ii.  179. 
effect  of,  in  removing  record,  ii.  181. 
proceedings  on,  ii.  182. 
when  a  proper  remedy,  iii.  366. 
when  granted  on  diminution  of  record,  iii.  344. 
will  not  lie  in  N.  J.  to  remove  proceedings  of  arbitrators,  i.  370. 
Cestui  que  trust,  power  of,  x.  258. 
right  of,  x.  258. 

trust  property  when  liable  for  debts  of,  x.  259. 
forfeitures  by,  x.  259. 
suits  by  and  against,  x.  261. 
may  convey  trust-estate,  x.  258. 
how  far  protected,  x.  263. 
what  acts  of,  will  destroy  a  trust,  x.  217. 
Challenge  of  grand  jurors,  when  to  be  made,  v.  312. 
to  the  array,  for  what  causes,  v.  343,  346. 

partiality  of  sheriff,  good  cause  of,  v.  343. 
to  the  favour,  what,  v.  343. 

tried  by  the  court,  v.  354. 
polls,  what,  v.  347. 
want  of  capacity  in  juror,  a  good  cause  of,  v.  348. 
when  jury  is  convened  from  an  improper  place,  it  may  be,  v.  351. 
peremptory,  when  allowed,  v.  362 
by  the  king,  v.  364. 


620  GENERAL    INDEX. 

Challenge,  when  to  be  taken,  v.  365. 
how  to  be  tried,  v.  366. 
alienage  good  cause  of,  i.  207. 
Chamber,  ejectment  lies  for  a,  iii.  275. 
Champerty,  what,  ii.  183. 
Chance-medley,  what,  vii.  184,  205,  207. 
Chancellor,  origin  of  his  authority,  ii.  681. 
Chancery  will  not  set  aside  an  award  when  relief  can  be  obtained  at  law,  i.  370. 

when  a  new  trial  will  be  granted  by  a  court  of,  ix.  583. 
Change  of  venue,  when  motion  for,  to  be  made,  x.  370. 

certainty  require**  in  an  affidavit  on  which  a  motion  is  made  to,  x.  371. 
cases  when  there  can  be  no,  x.  372. 
Charges  by  one  joint-tenant,  shall  sever  the  joint-tenancy,  when,  v.  288. 
upon  lands,  what,  vi.  19,  269. 
a  legacy,  effect  of,  vi.  289. 
Charitable  uses,  ii.  188. 

statute  of  43  Eliz.  relating  to,  ii.  192. 

when  it  is  in  force,  ii.  193. 
construction  of,  ii.  193. 
gifts,  how  construed,  ii.  196. 
Charters  belong  to  the  owner  of  inheritance,  iv.  84. 
not  the  subjects  of  larceny,  iv.  175. 
its  effect,  ii.  439. 
must  be  accepted,  ii.  439. 
Charter-party,  what,  vi.  628. 

master  of  vessel  may  make,  vi.  628. 
form  of,  vi.  629. 
action  on,  vi.  629. 
covenants  in,  vi.  631. 
annulled,  how,  vi.  631. 
dissolved  by  a  blockade,  vi.  633. 
Chase,  right  to,  ix.  483. 

Chastity,  a  charge  of  violation  of,  actionable,  ix.  42. 

Chattels  of  tenants  in  common,  how  to  be  seised  under  a  judgment  against  one,  v.  304. 
Check,  what  is  a  good  tender  of  a,  ix.  315. 
Cherokee  nation  not  a  foreign  state,  ii.  798. 
Chester,  county  palatinate  of,  ii.  756. 

Child  in  ventre  sa  mere  may  take  a  legacy,  when,  vi.  170,  182. 
Childishness  will  invalidate  a  will,  when,  x.  483. 
Children,  who  included  under  the  name  of,  vi.  149. 
effect  of  bequest  to,  as  a  class,  vi.  170. 
living  at  the  date  of  will,  alone  entitled,  vi.  170,  182. 
entitled  to  legacy  when  fund  is  divisible,  vi.  182. 
of  second  marriage,  when  entitled  to  a  legacy,  vi.  182 
younger,  who  are,  vi.  183. 
the  term,  may  include  grand-children,  vi.  184. 
how  rendered  legitimate,  ii.  78. 
puberty  of,  vi.  80. 

part,  by  the  custom  of  London,  iii.  43. 
posthumous,  to  what  entitled,  x.  567,  570. 
Chirograph  of  a  fine,  what,  iv.  249. 
Chivalry,  who  is  guardian  in,  iv.  5o9. 
Choses  in  action  may  be  assigned  by  the  king,  viii.  156. 

assigned  by  the  government,  effect  of,  viii.  156. 
when  subject  to  sequestration,  viii.  632,  633. 
of  wife,  how  far  vested  in  the  husband,  ii.  21. 
belonging  to  bankrupt  will  pass  to  his  assignees,  i.  741. 
Christianity,  reviling  of,  libellous,  vi.  346. 
Church,  offence  of  not  going  to,  punished,  iv.  645. 

what  are  offences  against  established,  iv.  650. 
Churchwarden,  duties  of,  ii.  236. 

manner  of  choosing,  ii.  237. 

interest  over  thing  belonging  to  the  church,  ii.  241. 
their  duty  in  making  presentments,  ii.  244. 
accounts  of,  ii.  245. 


GENERAL  INDEX.  621 

Churchwarden,  prohibition  against,  ii.  247. 

when  they  may  contract,  i.  156. 
Cinque  ports,  court  of,  ii.  780. 

chancery  court  of,  ii.  781 
Circuit  courts  established,  ii.  802. 
organization,  ii.  802. 
jurisdiction,  ii.  807  ;  ix.  501. 

in  bankruptcy,  i.  812. 
Circumvention,  when  fraudulent,  iv.  390.  , 

Citizens  of  the  United  States  may  expatriate  themselves,  vi.  &&S, 

cannot  cast  off  their  allegiance,  vm.  4«. 
naturalized,  duties  of,  viii.  48. 
corporations  aggregate  are  not,  ii.  448,  451. ' 
Civil  death  of  husband,  effects  of,  ii.  64. 
liability  of  officer,  vii.  325. 
jurisdiction  flows  from  the  king,  viii.  55. 
Claim  and  entry,  right  of  strangers  by,  iv.  276. 
of  conusance,  what,  vii.  526. 
what  is  released  by  the  word,  viii.  283. 
of  property,  when  to  be  made  in  replevin,  viii.  545. 
Class,  who  shall  take,  when  legacy  is  given  to  a,  vi.  181. 
effect  of  giving  a  bond  to  a,  vii.  249. 
libel  on  a,  vi.  343. 
slander  on  a,  ix.  72. 
Clergy,  when  benefit  of,  allowed,  iv.  190. 

not,  vii.  205.  . 

Clergyman  in  the  celebration  of  marriage  is  a  public  officer,  vi.  4bd. 
how  far  privileged,  v;ii.  162. 
what  is  slander  of  a,  ix.  48. 
Clerk,  when  execution  may  issue  against,  iii.  722. 
Clocks,  duties  on,  ix.  134. 
Close,  ejectment  does  not  lie  for,  iii.  275. 
Coachman,  when  not  a  servant,  vi.  186. 
Coal,  when  tenant  in  dower  may  dig,  x.  428. 
Codicil,  what,  x.  487. 

effect  of,  x.  511. 

nature  of,  x.  532.  #  .. 

Coercion  of  husband,  when  an  excuse  for  wife's  criminal  acts,  n.  3b. 
Co-executors,  acts  of,  how  far  binding,  iv.  37. 
Cohabitation  when  presumptive  evidence  of  marriage,  ii.  46. 
proof  of  marriage,  vi.  471. 
bond  given  for  past,  when  good,  vii.  260. 
future,  void,  vii.  260. 
Coins,  king's  prerogative,  in  relation  to,  viii.  37. 
value  of,  in  the  United  States,  viii.  39. 
punishment  of  counterfeiting,  viii.  39. 
when  it  is  treason  to  counterfeit,  ix.  402. 
Collatio  bonorum,  what,  iv.  97. 
Collateral  descent,  what,  iii.  106. 

warranty,  effect  of,  viii.  431. 

nature  of,  x.  403,  404. 
who  bound  by,  x.  403. 
Colloquium  of  the  person  accused,  required  to  support  an  action  for  slander,  ix.  4_, 

93,  104, 
Collusion,  what,  iv.  381.  . 

between  parties,  to  defeat  attorney's  remedy,  not  allowed,  i.  BOO. 
Colonies,  by  what  laws  governed,  viii.  46. 
Colour,  in  pleading,  what,  vii.  613. 

what  is  giving,  ix.  529.  .....  .    .,nri 

Commencement  of  suit  will  prevent  the  running  of  the  act  of  limitation,  vi.  ,,J.> 

of  binding  operation  of  a  statute,  ix.  220. 
Commerce,  Congress  have  a  right  to  regulate,  viii.  28. 
Commission  of  bankrupt,  what,  i.  658.  _  ...   _„ 

cannot  be  sustained  against  an  infant,  l.  1 99. 
joint,  against  partners,  i.  815. 


622  GENERAL   INDEX. 

Commission  of  bankrupt,  separate,  i.  815. 

for  an  office,  when  complete,  vii.  290. 
to  committee  of  lunatic,  when  allowed,  v.  14. 
of  justice  of  the  peace,  form  of,  v.  398. 
Commissioners  of  bankrupt,  their  duty,  i.  668.  _ 

property  to  which  they  are  entitled,  l.  717 
fees  of,  i.  814. 

when  creditor  cannot  be,  i.  810. 
of  charitable  uses,  duties  of,  ii.  217. 
sewers,  court  oi,  ii.  784. 
review,  court  of,  ii.  722. 
to  take  depositions,  how  to  act,  iii.  522. 
Commissions,  when  trustees  are  entitled  to,  x.  260. 
Commissumjidei,  what,  vi.  161. 
Commitment,  what,  ii.  248. 

for  what  offences  there  may  be,  ii.  248. 
by  whom  to  be  made,  ii.  249. 
to  what  prison,  ii.  250. 
requisites  previous  to,  ii.  252. 
form  and  requisites  of,  ii.  253,  254. 
to  what  court  to  be  certified,  ii.  259. 
prisoner  how  discharged  from,  ii.  259. 
form  of  regular,  iii.  395. 
Committee  of  lunatic,  duties  of,  v.  11. 

who  is  to  be,  v.  13. 
where  he  must  reside,  v.  13. 
power  over  lunatic,  V.  13. 
allowance  to,  v.  14. 
how  accountable,  v.  14. 
cannot  make  a  lease,  v.  15. 
improve  estate,  v.  15. 
purchase  land,  v.  15. 
trustee,  when  to  convey,  v.  3f 
may  surrender  lease,  v.  39. 
renew  lease,  v.  39. 
Common,  extinguishment  of,  what,  iv.  148. 

prayer,  offence  against  book  of,  iv.  641. 
recoveries,  what,  iv.  288.     See  Recoveries. 
law,  effect  of,  in  construing  statute,  ix.  244. 
what,  ii.  260. 
several  kinds  of,  ii.  260. 
appendant,  ii.  261. 
appurtenant,  ii.  262. 
in  gross,  ii.  264. 
pur  cause  de  vicinage,  ii.  2C5. 
rights  of  owner  of  the  soil  in,  ii.  266. 
remedies  as  to  rights,  in,  ii.  267-— 270. 
approvement  and  enclosure  of,  ii.  272. 
apportionment  and  extinguishment  of,  ii.  277. 
Commoner,  rights  of,  ii.  267. 

remedies  of,  against  the  lord,  ii.  268. 
against,  ii.  269. 
against  strangers,  ii.  270. 
Commorant,  what,  vii.  12. 
Companion,  meaning  of,  ix.  386,  393. 
Compassing  the  king's  death,  what  is,  ix.  381. 
Compensation,  what,  viii.  639. 

difference  between  set-off  and,  viii.  639. 
discount  is  synonymous  with,  viii.  640. 
Complaint,  in  cases  of  bastardy,  ii.  105. 
Composer  of  a  libel,  who  is,  vi.  353. 
Composition,  when  it  may  take  place  in  a  qui  tarn  action,  i.  99. 

cases  of  bankruptcy,  \  758,313 

real,  payment  of  tithes  by,  x.  49. 
Compulsory,  when  words  of  permission  are,  vi.  439. 
Compurgator,  who  are,  x.  383. 


GENERAL   INDEX.  C23 

Compurgators,  how  sworn,  x.  383.  _ 

Concealment  of  property  an  act  of  bankruptcy,  1.  b06. 
birth  of  bastard  child,  n.  107. 

facts  by  owner  of  property,  when  a  sufficient  exoneration  of  a  com- 
mon carrier,  ii.  155. 
facts,  when  fraudulent,  iv.  387,  388.      _ 

in  cases  of  insurance,  effect  of,  vi.  691. 
a  mortgage  by  mortgagee,  effect  of,  vii.  132. 
Concessimus,  effect  ofjhis  word,  ii.  558  ;  vii.  200. 
Concord,  what,  iv.  247. 
Concurrent  leases,  what,  v.  492. 
Conditions,  what,  ii.  279. 

kinds  of,  ii.  279.  ... 

precedent,  ii.  291 ;  vi.  2, 1 ;  vm.  oSO.  _ 

remainders  that  arise  on,  vm.  ooO. 
subsequent,  ii.  291 ;  vi.  271 ;  viii.  380.  _ 

remainders  that  arise  on,  vm.  3bU. 

legal,  vi.  271 ;  vii.  259. 
illegal,  vi.  271;  vii.  259.      _ 

in  restraint  of  marriage,  vi.  £i  1,  -b/. 

terrorem,  vi.  272,  274. 
not  to  dispute  a  will,  vi.  271. 
of  an  assignment,  when,  i.  387. 
against  changing  a  bequest,  vi.  289. 
in  restraint  of  trade,  ii.  300. 
not  to  give  evidence,  ii.  300. 
possible,  vi.  271. 

impossible,  ii.  304,  305  ;  vi.  271. 
void,  ii.  284,298,  305;  vi.  159. 
repugnant,  ii.  301.  ...  .. 

difference  between  limitations  and,  vm^obi  ;  ii.  tol. 

covenant  and,  ii.  287, 
how  created,  ii.  280,  282,  283. 
to  what  annexed,  m  283. 
whom  reserved,  ii.  284. 
who  bound  by,  ii.  285. 
effect  of  performance  of,  vii.  60,  G2._ 
•what  is  a  sufficient  performance  of,  n.  319,  o6U. 

by  whom,  n.  319. 
to  whom,  ii.  321. 
when,  ii.  323. 
where,  ii.  328. 
executing  a  release,  vi.  289. 
returning  from  a  voyage,  vi.  2f0. 
performing  services,  vi.  290. 
to  marry,  viii.  390. 
what  will  excuse  the  non-performance  of,  ii.  325. 
what  is  a  breach  of,  ii.  300  ;  vii.j32. 
of  auction  sales,  effect  of,  iii.  617. 
effect  of  appointment  of  executor  upon,  iv.  ob. 
performed,  effect  of  plea  of,  vii.  265. 
Conditional  legacies,  effect  of,  vi.  270. 
tender,  not  good,  ix.  315. 
Confession  in  cases  of  bigamy,  effect  of,  u.  111. 

by  party,  effect  of,  iii.  635.  . 

Confidential  agents,  contracts  with,  when  set  aside,  iv.  398,  4UU. 
Confirmation  of  void  acts,  how  made,  v.  141. 
implied,  v.  143. 
of  lease  by  an  infant,  what  is  a,  v.  44-- 

ecclesiastics,  how  made,  v._OoO. 
whom  to  be  made,  v.  532,  543. 
when  to  be  made,  v.  540. 
contract,  effect  of,  vii.  246. 
Conflicting  statutes  how  construed,  ix.  257. 
Confusion  of  goods,  effect  of,  ix.  480. 


624  GENERAL   INDEX. 

Congress  may  levy  taxes,  &c,  ix.  108. 
Connivance,  when  fraudulent,  iv.  389. 
Consanguinity,  when  a  good  cause  of  challenge,  v.  344. 
Conscience,  court  of,  ii.  791. 

jurisdiction  of,  ii.  792. 
Consent,  condition  of  marriage  with,  vi.  287. 

when  condition  precedent  must  be  given  before  marriage,  vi.  287. 
when  required  to  be  in  writing,  may  be  by  letter,  vi.  287. 
general,  when  valid,  vi.  287. 
when  once  given,  sufficient,  vi.  287. 
given  conditionally,  effect  of,  vi.  277. 
when  presumed,  vi.  287. 
does  not  confer  jurisdiction,  ii.  618. 
rule,  what,  iii.  279. 
Consequences  of  a  tender,  ix.  328. 

profert  in  curia,  ix.  338. 
bringing  money  into  court,  ix.  345. 
Consequential  injuries,  action  for,  ix.  441. 
Conservators  of  the  peace,  who  are,  v.  394. 
Consideration  of  a  bond,  when  good,  vii.  259. 

void,  vii.  260. 
to  pay  an  old  debt,  when  good,  vii.  261. 

withdraw  opposition  to  insolvent,  void,  vii.  261. 
difference  between  an  executed  and  an  executory,  vii.  569. 
may  be  traversed,  when,  vii.  569. 
Consideration,  what  sufficient  to  support  an  agreement,  i.  165,  166. 
defined,  i.  418. 

requisite  to  create  an  assumpsit,  i.  418. 
idle,  void,  i.  418. 
executed,  i.  430. 
against  law,  i.  432. 

how  it  must  be  averred  in  a  declaration,  i.  444. 
of  bargain  and  sale,  ii.  7.     • 
Consistory  courts,  what,  ii.  720. 
Conspiracy,  an  action  on  the  case  will  lie  for,  i.  138. 
to  cheat,  an  indictment  lies  for  a,  v.  58. 
consequences  of  a,  vii.  201. 
Constable,  how  chosen,  ii.  343. 

who  obliged  to  serve,  ii.  346. 
power  of,  ii.  348. 

not  protected  by  warrant,  when,  ii.  351,  352. 
suits  against,  what  must  precede,  ii.  353. 
.    expenses  of,  how  paid,  ii.  354. 
court  of,  established,  ii.  706. 
when  it  is  murder  to  kill  a,  vii.  200. 
Const 'it uimus,  when  required  in  a  commission,  vii.  290. 
Construction  and  effect  of  an  award,  i.  343. 

of  covenants,  how  made,  ii.  576. 
customs,  iii.  33. 
words,  iii.  25.     See  Words. 

"  inevitable  dangers  of  the  river,"  iii.  25. 
"  survivor,"  vii.  268. 
grants,  how  made,  iv.  526. 
leases,  v.  548. 

slanderous  words,  ix.  60,  61. 
doubtful  words,  ix.  75,  76. 
adjective  words,  ix.  78. 
disjunctive  words,  ix.  80. 
copulative  words,  ix.  80. 
a  statute,  by  whom  made,  ix.  237. 
rules  of,  ix.  238,  255. 
when  two  are  passed  same  day,  ix.  221. 
which  are  retrospective,  ix.  221. 
effect  of  preamble  and  enacting  clause,  ix.  241. 
which  concerns  the  public  good,  ix.  251. 


GENERAL  INDEX.  625 

Construction  of  a  statute,  remedial,  ix.  251. 

penal,  ix.  252. 
will,  how  made,  x.  533. 
Constructive  treason,  what,  ix.  391. 

possession,  when  sufficient  to  support  trespass,  ix.  455. 
escape,  what,  iii.  402. 
Consuls,  when  they  may  sue  and  be  sued,  ii.  819. 
Consummation  of  a  will,  what,  x.  533. 

Contagious  distemper,  when  charge  of,  is  slanderous,  ix.  45. 
Contemplation  of  bankruptcy,  what,  i.  804. 

Contempt,  what  authority  may  punish  for,  i.  473.     Vide  Attachment. 
how  punished,  ii.  633. 

publication  of  proceedings  of  court,  when  a,  ii.  631. 
Context,  to  be  taken  into  view  in  construction,  ii.  577. 

Contingent  debts,  when  they  may  be  proved  against  a  bankrupt's  estate,  i.  707,  807. 

to  be  paid,  iv.  108. 
remainders,  what,  viii.  315. 

to  whom  transmissible,  viii.  317. 
how  destroyed,  viii.  337. 
to  be  executed,  x.  157. 
Continual  claim,  its  effects  to  preserve  entry,  iii.  126. 

what  is  requisite  to  make  it  effectual,  iii.  127. 
time  in  which  it  may  be  made,  iii.  128. 
Continuance,  when  amended  at  common  law,  i.  224. 
necessary,  vii.  680,  683. 
how  to  be  entered,  vii.  684. 
at  what  time  to  be  entered,  vii.  684. 
of  parliament,  how  made,  ii.  675. 

a  cause,  when  to  take  place,  ix.  579. 
Continuando,  when  required  in  a  declaration  in  trespass,  ix.  510. 
Contra  pacem,  when  requisite  in  an  indictment,  v.  85. 

trespass,  ix.  502. 
curonam  et  dignitatem  regis,  when  requisite,  v.  86. 
formam  statuti,  when  requisite,  v.  90. 
Contraband  articles,  effect  of  having,  ii.  752. 
Contracts  for  the  sale  of  lands,  how  to  be  made,  i.  178. 

not  to  be  performed  within  a  year,  how  to  be  made,  i.  182. 
entire,  must  be  completed,  to  entitle  plaintiff"  to  recover,  i.  411. 
when  they  are  complete,  i.  414. 
divisible,  i.  415. 
conditional,  how  fulfilled,  i.  415. 

when  made  by  several,  how  far  each  contractor  is  liable,  i.  419. 
unlawful,  will  not  be  enforced,  i.  443. 
immoral,  cannot  be  enforced,  i.  444. 
fraudulent,  void,  i.  444. 

when  an  executory,  passes  to  bankrupt's  assignees,  i.  736. 
jurisdiction  of  D.  C.  in  cases  of,  ii.  816. 
of  administrator,  when  binding  on  him,  iv.  124. 
when  usurious,  x.  268.    See  Usury. 
Contractors,  when  they  are  several,  how  far  each  is  liable,  i.  419. 
Contribution,  when  heir  entitled  to,  iv.  616. 

to  be  made  by  tenant  in  common,  v.  307. 

between  the  corpus  and  the  interest  of  the  thing  given, 
vi.  302. 
Conusance,  kinds  of,  ii.  627. 

of  jurisdiction  of  universities,  how  to  be  demanded,  x.  106. 

by  whom  to  be  demanded,  x.  106. 
when  to  be  demanded,  x.  107. 
Conusor,  what  to  do,  iv.  246. 
Conversant,  meaning  of,  vii.  12. 
Conversion,  what  is  a,  ix.  631 ;  ii.  491. 

Conveyance  of  wife's  land,  by  husband  and  wife,  effect  of,  ii.  49,  51. 
when  fraudulent  against  purchasers  and  creditors,  iv.  401. 
to  uses,  kinds  of,  x.  129. 

feoffments,  x.  130. 

Vol.  X.— 79  3  G 


626  GENERAL   INDEX. 

Conveyance  to  uses,  kinds  of,  fines,  x.  130. 

recoveries,  x.  130. 
Conviction,  when  a  defendant  may  be  bailed  after,  i.  588. 
Convocation,  court  of,  ii.  717. 
Convocium,  what,  ix.  29. 
Convoy,  warranty  to  sail  with,  vi.  727. 
Co-obligors,  how  liable,  vii.  249. 
Cook,  when  entitled  as  a  mariner,  ii.  740. 
Coparcenary,  nature  of  inheritance  of,  ii.  355. 

nature  of  estate  in  respect  to  actions,  ii.  356. 
Coparceners,  ii.  355. 

actions  by  or  against,  ii.  356. 
partition  among,  ii.  358. 
Copartner,  cannot  authorize  an  appearance  for  another,  i.  485. 
Copies,  how  proved,  iii.  533,  537. 
Copulative  words,  how  construed,  ix.  80.     See  Construction. 

terms,  effect  of,  x.  540. 
Copyright,  what,  ii.  368. 

for  what  granted,  viii.  141. 
injunction  lies  to  protect  a,  v.  198,  215. 
Copyhold,  what,  ii.  368. 

nature  and  tenure  of,  ii.  369. 
how  created,  ii.  370. 

in  what  respect  it  partakes  of  the  nature  of  freehold,  ii.  370. 
acts  of  parliament  which  extend  to  lands  held  by,  ii.  372. 
particular  customs  as  to  some,  ii.  378. 
general  customs  which  extend  to  all,  ii.  378. 
ands,  by  whom  they  may  be  granted,  ii.  383. 
by  whom  they  cannot  be  granted,  ii.  386. 
grants,  their  operation,  ii.  388. 
what  things  may  be  holden  in,  ii.  387. 
surrender  of,  ii.  389. 

when  supplied  in  equity,  ii.  392. 
fines  payable  for,  ii.  406.     See  Fines. 
extinguishment  of,  ii.  411.     See  Extinguishment. 
forfeiture  of,  ii.  413.     See  Forfeiture. 
where  and  how  to  be  sued  for,  ii.  422. 

belonging  to  bankrupt,  when  they  pass  to  his  assignees,  i.  721. 
curtesy  not  allowed  in,  iii.  7. 
dower  not  allowed  in,  iii.  196. 
extinguishment  of,  iv.  147. 
Copyholder,  lease  by,  when  good,  v.  563. 
Coram  nobis,  writ  of,  iii.  367. 
Corn,  what,  vi.  676. 

rice  not  included  under  the  term,  vi.  676. 
when  tithable,  x.  16. 
Cornage,  tenure  by,  ix.  377. 
Corody  may  be  the  subject  of  a  lease,  v.  438. 
Coronation,  ceremony  of,  viii.  10. 
oath,  form  of,  viii.  11. 
Coroner,  who  is,  ii.  424. 

several  kinds  of,  ii.  424. 
qualifications  of,  ii.  425. 
how  chosen,  ii.  425. 

over  what  place  he  has  jurisdiction,  ii.  426. 
authority  in  taking  inquisitions,  ii.  427. 
powers  of,  judicial  and  ministerial,  ii.  428. 
may  fine  a  juror,  ii.  429. 
jurisdiction  over  subject-matter,  ii.  430. 
traversing  and  quashing  inquisition,  ii.  431. 
power  as  to  appeals,  ii.  432. 
when  acts  of  one  shall  be  good,  ii.  433. 
fees  of„  ii.  433. 

may  De  discharged  for  misdemeanors,  ii.  435. 
is  a  conservator  of  the  peace,  v.  395. 
Corporal  penalties  for  smuggling,  ix.  152.     See  Penalties. 


GENERAL   INDEX.  627 

Corporate  officers,  how  elected,  ii.  467. 

removed,  ii.  474. 
Corporations,  ii.  43G. 

definition,  ii.  437. 

different  kinds,  ii.  437. 

by  whom  and  how  created,  ii.  438. 

names  of,  ii.  440. 

how  names  may  be  varied  in  grants,  ii.  441. 

what  things  are  incident  to,  ii.  445. 

assumpsit  lies  against,  ii.  446. 

in  what  name  they  may  be  sued,  ii.  449. 

distringas,  when  it  will  lie  against,  ii.  450. 

liable  for  torts,  ii.  450. 

what  they  may  do  without  deed,  ii.  452. 

foreign,  powers  of,  ii.  451. 

limited  in  their  powers,  ii.  445. 

how  they  differ  from  natural  persons,  ii.  448. 

are  to  sue  or  be  sued,  ii.  449. 
grants  by  and  to,  ii.  448. 
what  they  may  take  by  succession,  ii.  454. 
when  members  shall  be  personally  liable,  ii.  455. 
members,  how  constituted,  ii.  457. 
amotion  of,  ii.  458. 
concurrence  of,  ii.  459. 
election  and  amotion  of,  ii.  465. 
regularity  of  proceedings  of,  ii.  461. 
how  they  are  visited,  ii.  477. 
dissolved,  ii.  480. 

by  misuser,  ii.  481. 

neglect  of  corporators,  ii.  482. 
forfeiture,  ii.  482. 
surrender  of  their  charter,  ii.  482. 
to  contract,  i.  158. 
may  appear  by  attorney,  i.  485. 

how  to  prove  debts  against  a  bankrupt  estate,  i.  809,  810. 
may  distrain,  when,  iii.  165. 
books  of,  when  evidence,  iii.  580. 
may  be  executors,  when,  iv.  8. 
how  to  make  grants,  iv.  503. 
cannot  be  joint-tenants,  v.  241. 
need  not  deliver  a  deed,  v.  539. 
Corporators,  when  personally  liable,  ii.  455. 
Correction,  when  justifiable,  i.  374 — 376. 
Corruption  of  blood,  how  limited,  iv.  338,  349. 
Costs  in  certiorari,  ii.  171. 
de  incremento,  ii.  484. 

when  limited  by  the  amount  of  damages,  ii.  485. 
in  actions  of  slander,  ii.  495. 

assault  and  battery,  ii.  497. 
double  and  treble,  ii.  498. 
how  awarded  to  defendant,  ii.  502. 
who  entitled  to,  ii.  516. 
when  de  bonis  testatoris,  ii.  516. 

propriis,  ii.  516,  517. 
for  and  against  informers,  ii.  522. 
against  paupers,  n.  524. 

the  government,  ii.  524. 
informers  in  qui  tarn  actions,  ii.  524. 
in  replevin,  ii.  525. 
on  writs  of  error,  ii.  508. 
feigned  issues,  ii.  532. 
interlocutory  proceedings,  ii.  534. 
actions  upon  judgments,  ii.  533. 
when  proceedings  are  set  aside,  ii.  533. 

plaintiff  cannot  go  on  to  trial,  ii.  538. 


628  GENERAL   INDEX. 

Costs,  when  the  cause  is  put  off,  ii.  537. 
security  for,  when  required,  ii.  537. 
when  they  may  be  set  off,  ii.  538. 
how  assessed,  ii.  539. 
in  the  courts  of  the  United  States,  ii.  546. 

1.  amount  of,  ii.  546. 

2.  to  whom  allowed,  ii.  547. 

3.  against  whom,  ii.  547. 

4.  in  what  cases,  ii.  547. 

5.  who  is  entitled  to,  ii.  547. 

6.  when  they  will  not  be  given,  ii.  547. 
nominal  parties,  when  liable  for,  ii.  548. 
security  for,  ii.  548. 

when  required  of  non-residents,  ii.  548. 
in  Kentucky,  ii-  548. 
Indiana,  ii.  548. 
Illinois,  ii.  548. 
Pennsylvania,  ii.  548. 
New  Jersey,  ii.  549. 
Missouri,  ii.  549. 
North  Carolina,  ii.  549. 
Virginia,  ii.  549. 
of  insolvents,  ii.  549. 
miscellaneous  case,  ii.  549. 
regulation  as  to  taxation  of,  in  the  courts  of  the  U.  S.,  ii.  823. 
when  given  in  qui  tarn  actions,  i.  98. 
on  amendments,  i.  255. 
provable  against  bankrupt,  i.  698. 
in  cases  of  new  trial,  by  whom  paid,  ix.  587. 

ejectment,  iii.  268. 
when  executors  liable  for,  iv.  141. 
infant  liable  for,  v.  153. 

not  liable  for,  v.  153. 
prochein  ami,  liable  for,  v.  153. 
in  admiralty,  how  awarded,  vii.  440. 
Cotton,  usage  as  to  the  sale  of,  iii.  29. 
Counsel  may  be  enjoined  from  divulging  client's  secrets,  v.  208. 

when  a  new  trial  will  be  granted  for  the  mistake  of,  ix.  616. 
Counsellor  at  law  not  guilty  of  maintenance,  vi.  413. 
Count,  difference  between  a  declaration  and  a,  vii.  464. 
when  they  may  be  joined,  vii.  472. 
consequences  of  joining  bad  with  good,  x.  309. 
Counterfeit  bank  bills,  payment  made  in,  not  good,  i.  412. 
Counterfeiting  money,  when  treason,  ix.  402. 
Counters,  what  so  called,  ii.  791. 
County  palatine  of  Chester,  ii.  756. 
Lancaster,  ii.  760. 
Durham,  ii.  759. 
court,  ii.  776. 

how  to  be  set  out  in  an  indictment,  v.  82. 
Courses  and  distances  controlled  by  boundaries,  viii.  152. 
Court,  what  is  a,  ii.  616. 

how  constituted,  ii.  617. 
jurisdiction,  how  given  to,  ii.  618. 

no  foreign  government  can  establish  a,  in  the  U.  S.  ii.  619. 
when  jurisdiction  is  determined,  ii.  622. 
several  kinds  of,  ii.  624. 
of  Parliament,  ii.  G34. 
Chancery,  ii.  681. 

is  an  officina  breviitm,  ii.  681. 
ordinary  jurisdiction,  ii.  G83. 
extraordinary  jurisdiction,  ii.  684. 
its  present  jurisdiction,  ii.  687. 
King's  Bench,  ii.  689. 

jurisdiction  in  criminal  matters,  ii.  690. 


GENERAL  INDEX.  629 

Court,  of  King's  Bench,  jurisdiction  in  civil  causes,  ii.  691. 

over  inferior  jurisdictions,  ii.  692. 
form  of  its  proceedings,  ii.  696. 

its  presence  suspends  the  power  of  other  courts,  ii.  696. 
Common  Pleas,  origin  of,  ii.  697. 
Exchequer,  nature  of,  ii.  698. 

jurisdiction  of,  ii.  699. 
proceedings  in,  ii.  705. 
the  constable  and  earl  marshal,  ii.  706. 
manner  of  holding,  ii.  706. 
jurisdiction  of,  ii.  707. 
proceedings  of,  ii.  709. 
the  justices  of  Oyer  and  Terminer,  ii.  709. 

manner  of  appointing  commissioners,  ii.  710. 
jurisdiction  of,  ii.  711. 
proceedings  of,  ii.  712. 
justices  of  assize,  ii.  713. 

the  peace,  ii.  715. 
ecclesiastical,  ii.  716. 
of  convocation,  ii.  717. 

Arches,  ii.  718. 
prerogative,  ii.  719. 
of  audience,  ii.  719. 
faculties,  ii.  719. 
peculiars,  ii.  720. 
consistory,  ii.  720. 
of  archdeacon,  ii.  721. 
delegates,  ii.  721. 
commissioners  of  review,  ii.  722. 
the  marshalsea  and  palace,  ii.  753. 
palatinate,  ii.  755. 

the  county  palatine  of  Chester,  ii.  756. 
Durham,  ii.  759. 
Lancaster,  ii.  760. 
Ely,  ii.  761. 
the  forest,  ii.  762. 
justice-seat,  ii.  763. 
swainmote,  ii.  765. 
attachments,  ii.  767. 
the  sheriff's  torn,  ii.  768. 
leet,  ii.  774. 
county,  ii.  776. 
of  hundred,  ii.  777. 
baron,  ii.  778. 
of  the  cinque  ports,  ii.  780. 
stanneries,  ii.  783. 
commissioners  of  sewers,  ii.  784. 
pipowders,  ii.  789. 
in  London,  ii.  790. 
of  hustings,  ii.  790. 
sheriffs',  ii.  791. 
of  conscience,  ii.  791. 
martial,  how  organized,  ix.  183. 

trial  by,  ix.  551. 
of  equity,  power  of,  over  bonds  to  resign  a  benefice,  ix.  19. 
Courts  of  the  United  States,  ii.  793. 

Senate  of  the  U.  S.  795. 
Supreme  Court,  organization  of,  ii.  796. 
jurisdiction  of,  ii.  797. 

civil,  ii.  797. 
original,  ii.  797. 
appellate,  ii.  799. 
mandamus,  ii.  80a. 
Circuit,  ii.  802. 

3  G  2 


<530  GENERAL   INDEX. 

Oourts  of  the  United  States,  Circuit,  organization  of,  ii.  802. 

jurisdiction  of,  ii.  807. 

civi'l,  ii.  807. 

at  law,  ii.  807. 
original,  ii.  807. 
removal  of  actions,  ii.  810. 
mandamus,  ii.  812. 
appellate,  ii.  812. 
equity,  ii.  813. 
criminal,  ii.  814. 
District,  ii.  814. 

organization,  ii.  814. 
jurisdiction,  ii.  815. 

civil,  ii.  815. 

admiralty,  ii.  815. 

ordinary,  ii.  815. 
extraordinary,  ii.  817. 
cases  of  seizures,  ii.  818. 
when  an  alien  sues,  ii.  818. 
when  the  U.  S.  sue,  ii.  818. 
when  consuls  are  parties,  ii.  819. 
in  bankrupt  cases,  ii.  819. 
in  equity,  ii.  819. 
criminal  jurisdiction,  ii.  819. 
Territorial,  ii.  820. 

Florida,  ii.  820. 
Wisconsin,  ii.  820. 
Iowa,  ii.  821. 
will  not  enjoin  proceedings  in  a  state  court,  v.  210. 
when  they  may  punish  for  contempts,  i.  473. 
of  bankruptcy  established,  i.  793. 
review  established,  i.  793. 
commissioners,  i.  794. 
in  the  District  of  Columbia,  jurisdiction  of,  i.  815. 

the  territories  of  the  United  States,  jurisdiction  of,  i.  81f 
Circuit,  jurisdiction  of,  i.  815. 
Cousins,  who  takes  under  a  bequest  to,  vi.  188. 
Covenant,  agreement,  what,  ii.  550. 

in  Kentucky,  what,  ii.  550. 
affirmative,  what,  ii.  551. 
negative,  what,  ii.  551. 
dependent,  ii.  551. 
independent,  ii.  551. 
express,  how  created,  ii.  552. 
implied,  how  created,  ii.  555. 
parties  to,  ii.  560. 
joint  and  several,  ii.  580,  563. 
real  and  personal,  ii.  564. 
principal  and  auxiliary,  ii.  590. 
when  the  heir  is  bound  by  ancestor's,  ii.  564. 
executors  bound  by  testator's,  ii.  564. 

may  take  advantage  of  testator's,  ii.  565. 
assignee  is  bound  by  assignor's,  ii.  560. 

may  take  advantage  of  assignor's,  ii.  572. 
assignor  shall  continue  liable  on,  ii.  571. 
which  bind  by  force  of  stat.  32  H.  8,  c.  34,  ii.  757. 
how  construed,  ii.  576. 
what  is  a  breach  of,  ii.  592. 

performance,  ii.  592. 
difference  between  a  condition  and  a  covenant,  ii.  287. 
running  with  the  land,  when  mortgagee  is  liable  for,  vii.  58. 
when  a  release,  viii.  248. 
not  to  sue,  effect  of,  viii.  249,  276. 
between  high  and  under  sheriff,  viii.  673. 
of  ancestor,  when  for  the  benefit  of  heir,  iv.  610. 


GENERAL  INDEX.  631 

Covenant,  agreement,  of  ancestor,  when  binding  on  the  heir,  iv.  613. 
to  stand  seised  to  uses,  x.  140. 

consideration,  x.  140. 
extends  how  far,  x.  140. 
how  created,  x.  144. 
effect  of,  x.  136. 
who  may  grant,  x.  137. 
to  whom  granted,  x.  137. 
action  of,  when  a  proper  remedy,  ii.  559. 
it  will  not  lie,  iii.  93. 

on  a  policy,  vi.  748. 
may  be  maintained  by  executor,   when,  iv.  126. 
when  a  breach  shall  be  well  assigned,  ii.  597. 
plea  in,  ii.  603. 

performance,  when  well  pleaded,  ii.  605. 
when  money  may  be  tendered  in,  ix.  353. 
when  injunction  lies  to  prevent  breach  of,  v.  214. 
Covenantors,  effect  of  death  of  one  of  several  joint,  ii.  563. 

act  of,  evidence  of  breach  of  covenant,  ii.  595. 
Covenantees,  when  they  may  maintain  several  actions,  ii.  563. 
effect  of  death  of  one  of  several  joint,  ii.  563. 
act  of,  to  discharge  covenant,  ii.  593. 
Coverture,  when  a  good  plea  in  abatement,  i.  13. 

how  far  property  of  wife  accruing  during,  belongs  to  the  husband,  ii.  27. 
Covin,  what,  iv.  381. 

jurisdiction  of  chancery  as  to,  ii.  688. 
Credit,  when  an  action  lies  for  goods  sold  on,  i.  414. 
mutual,  what,  i.  810. 
when  a  factor  can  sell  on,  vi.  561. 

cannot  sell  on,  vi.  561. 
Creditors,  who  are  joint,  i.  801. 

who  joint  and  several,  i.  801. 
who  are  mutual,  i.  810. 
cannot  act  as  commissioner,  when,  i.  810. 
of  bankrupt,  who  are  such,  i.  681. 
their  rights,  i.  686. 
when  they  have  an  election,  i.  688. 
who  are  petitioning,  i.  659,  801. 
an  assignor,  rights  of,  i.  387. 
may  be  executor,  iv.  13. 
effect  of  his  being  appointed  executor,  iv.  13. 
what  fraudulent  conveyances  are  void  as  to,  iv.  401. 
Crime  against  nature,  ix.  158. 
Criminal  proceedings  when  amendable,  i.  237. 
jurisdiction  of  C.  C,  ii.  814. 
D.  C,  ii.  819. 
conversation,  effect  of,  vi.  493.     See  Adultery. 

evidence  of,  vi.  495. 
case,  when  a  new  trial  will  be  granted  in  a,  ix.  622. 
Criminals  cannot  be  executors,  when,  iv.  8. 
Criticism,  when  not  a  libel,  vi.  339. 
Crop,  who  is  entitled  to,  viii.  452. 

copyholder,  when,  ii.  381. 
out-going  tenant,  iii.  23. 
heir,  iv.  83. 
executor,  iv.  83. 

on  death  of  devisee  for  life,  vi.  198. 
replevin  does  not  lie  for  a,  viii.  550. 
liable  to  seizure,  viii.  703. 
Crown,  who  inherits  the,  viii.  10. 

property,  rules  relating  to,  viii.  84. 
Cruelty  of  husband  towards  wife,  effect  of,  ii.  44. 
when  divorce  allowed  for,  vi.  499. 
of  master,  when  a  discharge  of  apprentice,  vi.  513. 
Cry  depais,  what,  iv.  693. 


632  GENERAL  INDEX. 

Cul  de  sac,  when  a  public  highway,  iv.  G68. 

Curators,  who  are,  iv.  538. 

Curia  regis,  its  ancient  jurisdiction,  ii.  G40. 

Ciirialis,  meaning  of,  vi.  410. 

Curtesy,  what,  iii.  5. 

its  requisites,  iii.  5. 

who  may  or  may  not  be  tenant  by  the,  iii.  0. 

in  what  estate  allowed,  iii.  7. 

not  allowed,  iii.  7. 
of  wife,  iii.  9. 
quality  of  the  estate  on  which  it  is  allowed,  iii.  10,  17. 
seisin  of  wife,  required  in,  iii.  11. 
title  to,  how  destroyed,  iii.  18. 
Custom,  what,  iii.  20. 

how  established,  iii.  20. 
persons  affected  by,  iii.  21. 
what  are  unlawful,  iii.  22. 
when  it  shall  bind,  iii.  28. 
to  what  extended,  iii.  33. 
how  destroyed,  iii.  34. 
certainty  of,  required,  iii.  31. 
how  alleged  and  pleaded,  iii.  35. 

proved,  iii.  36. 
descents  according  to,  iii.  111. 
lease  to  be  construed  by  the,  v.  G13. 
must  be  accurately  stated  in  the  declaration,  vii.  504. 
of  merchants,  force  of,  vi.  553. 
Customs  of  London,  iii.  36,  37. 

respecting  a  freeman's  estate,  iii.  40. 
children's  part,  by  the,  iii.  43. 
advancement,  by  the,  iii.  43. 
hotchpot,  by  the,  iii.  43. 
wife's  part  by,  iii.  47. 
legatory  or  dead  man's  part,  by,  iii.  47. 
as  to  femes  covert,  iii.  49. 
proceedings  to  recover  debts,  by,  iii.  50. 
foreign  attachment,  by,  iii.  51. 
Customs,  what,  ix.  106. 

of,  in  general,  ix.  107. 
origin  of,  ix.  108. 
ancient  state  of,  certain,  ix.  117. 
present  state  of  the,  fx.  121. 
Castas  rotulorum,  duties  of,  vii.  297. 
Cut,  meaning  of,  vi.  409. 
Cy  pres,  doctrine  of,  ii.  209. 

D. 

Damages  in  trespass,  ix.  547. 

when  a  new  trial  will  be  granted  for  smallness  of,  ix.  605. 

excessive,  ix.  607. 
in  trover,  measure  of,  ix.  681. 
what,  iii.  57. 
entire,  what,  iii.  68. 
in  trover,  what,  iii.  63,  65. 
who  entitled  to,  iii.  58. 
against  whom,  iii.  60. 

railroad  company,  iii.  65. 
bank  directors,  iii.  66. 
joint  trespassers,  iii.  72. 
several  trespassers,  iii.  72. 
quantum  of,  iii.  60,  68. 

when  beyond  the  penalty  of  a  bond,  ii.  599. 

not,  iii.  63  ;  vii.  239. 
loss  of  good  bargain  not  allowed,  iii.  65. 


GENERAL  INDEX.  633 


Damages,  quantum  of  vindictive,  when  given,  iii.  65. 
when  to  he  mitigated,  iii.  03. 
interest,  iii.  62. 
double,  iii.  81. 
treble,  iii.  81. 

when  court  may  increase,  iii.  75. 
must  be  assessed  pursuant  to  plaintiff's  right,  iii.  68. 
in  maritime  cases,  iii.  81. 

patent  cases,  iii.  82. 
on  a  contract  made  by  mistake,  iii.  61. 
how  assessed,  iii.  60. 
in  mayhem,  vi.  408. 
on  bills,  vi.  848. 
for  not  replacing  stock,  vi.  61. 

an  escape,  viii.  720,  721. 
cannot  be  recovered,  when,  iii.  60. 
Damnum  absque  injuria,  no  action  will  lie  for,  i.  67,  108,  109. 
Date  of  a  deed,  what,  iv.  219. 

when  there  are  two  dates,  iv.  220. 
when  required  in  a  bond,  v.  243. 
manner  of  making,  v.  498. 
when  required  in  a  lease,  v.  485. 

the  day  to  be  counted,  v.  485. 
of  a  lease,  v.  613. 

how  to  be  stated  in  an  indictment,  v.  81. 
Days  of  grace,  what,  vi.  767,  830. 
effect  of,  vi.  767. 
number  of,  vi.  767. 
De  bonis  non,  who  is  an  administrator,  iv.  23. 

propriis,  when  executor  liable,  iv.  119. 
heir  liable,  iv.  626. 
judgment,  iv.  34. 
donis,  statute  of,  ii.  372. 

why  made,  iii.  430. 
what  may  be  entailed  under,  iii.  431. 
hceretico  comburendo,  writ  of,  iv.  633. 
increment*),  costs,  when  given,  ii.  484. 
injuria,  when  not  a  proper  plea  to  an  avowry,  viii.  574. 
a  proper  replication,  vii.  536;  ix.  530. 
proper  in  assumpsit,  vii.  585. 
not  a  proper  plea,  vii.  586. 
medietafe  lingua;,  when  a  jury  is  to  be,  v.  361. 
melioribus  damnis,  rule  of,  vi.  346. 
partifione  facienda,  writ  of,  when  it  lies,  ii.  364. 
plegiis  acquietandis,  writ  of,  vii.  257. 
proprietate  ])robanda,  writ  of,  viii.  540,  545. 
retorno  habendo,  when  to  be  issued,  viii.  546. 
son  tort,  who  is  an  executor,  iv.  26. 
Dead  man's  part,  what,  iii.  47. 

property,  remedy  for  injuries  to,  ix.  475. 
Deaf  and  dumb  cannot  make  a  will,  when,  x.  483. 
Dealer,  when  considered  a  trader,  i.  800. 
Dean,  power  of,  to  make  leases,  v.  480. 
Death  of  parties,  may  be  pleaded  in  abatement,  i.  11. 
appeal  of,  i.  291. 

of  defendant  in  execution,  effect  of,  iii.  704. 
when  presumed,  iii.  210. 
of  devisee,  in  the  lifetime  of  devisor,  effect  of,  vi.  157. 

partner  dissolves  partnership,  vi.  589. 
effect  of,  on  wages  of  seamen,  vi.  607,  611. 
Debet,  when  actions  may  be  in  the,  i.  129,  134. 

and  deiinet,  when  actions  may  be  in  the,  iii.  94. 
Debt,  contract,  what,  iii.  82.     See  Debts. 

devise  for  the  payment  of,  vi.  75,  84. 
what  passes  by  a  bequest  of,  vi.  195. 

Vol.  X.— 80 


634  GENERAL  INDEX. 

Dsbt,  contract,  -when  a  legacy  is  a  satisfaction  of,  vi.  210. 
what  is  an  extinguishment  of  a,  iii.  99. 
action  of,  what,  iii.  82. 

when  an,  will  lie,  iii.  83,  93. 

on  distinct  sums  on  same  contract,  iii.  83. 

when,  shall  have  accrued,  iii.  87. 

who  may  bring  an,  iii.  88. 

when,  is  the  proper  remedy,  iii.  93. 

how  to  be  brought,  iii.  94. 

in  London,  iii.  50. 
in  the  debet  and  detinet,  iii.  94. 
pleadings  in,  iii.  98. 
declaration  in,  iii.  98. 
when  money  may  be  tendered  in,  ix.  354. 
Debtor  may  be  made  bankrupt  by  absenting  himself,  i.  045,  802. 

remaining  abroad,  i.  043. 
beginning  to  keep  house,  i.  040,  803. 
departing  the  realm,  i.  042. 
suffering  imprisonment,  i.  803. 
consequence  of  making,  executor,  iv.15. 
Debts,  what  are  good  petitioning  creditors',  i.  059,  801. 
provable,  in  bankruptcy,  i.  084,  801. 
contingent,  i.  707,  807. 
mutual,  what,  i.  810. 
of  soldiers,  how  paid,  ix.  191. 

decedent,  how  to  be  paid,  iv.  105. 
extinguishment  of,  what,  iv.  149. 
Deceit,  wha',  iv.  381. 

wher  case  lies  for,  i.  111. 
Declaration,  when  it  may  be  amended,  i.  247. 

uncertain,  not  cured  by  verdict,  i.  247. 
in  appeal,  form  of,  i.  297. 
when  consideration  must  be  averred  in,  i.  444. 
promise  must  be  averred  in,  i.  440. 
for  money  had  and  received,  i.  447. 
on  promissory  note,  what  must  be  averred,  i.  445. 
in  ejectment,  form  of,  iii.  200. 

replevin,  requisites  of,  viii.  553. 
of  war,  viii.  81. 
when  evidence,  iii.  030,  032. 
what,  vii.  404. 

difference  between  a  count  and  a,  vii.  404. 
conclusion  of,  vii.  404. 

who  may  be  joined  as  parties  in  the  same,  vii.  407.    See  Parties  to  Actions, 
ivhat  matters  may  be  joined  in,  vii.  472. 
how  far  required  to  agree  with  writ,  vii.  474. 
certainty  required  in,  vii.  477,  513^ 
must  show  plaintiff's  right,  vii.  477. 
on  a  penalty,  requisites  of,  vii.  204. 
for  disturbance  of  incorporeal  rights,  vii.  481. 
averments  required  in,  vii.  483,  491. 
must  lie  positive,  vii.  510. 
of  performance,  vii.  485. 
tender,  vii.  488. 
readiness  to  perform,  vii.  488. 
allegations  in,  vii.  492. 
misrecitals  in,  vii.  492. 
nnissions  in,  vii.  492. 
rarianccs  between  evidence  and,  vii.  497. 
ivhen  good  in  part  and  bad  in  part,  vii.  517. 
in  slander,  requisites  of,  ix.  85. 
trespass,  ix.  503. 

general  requisites,  ix.  501.  ^ 
when  a  continuando  requisite,  ix.  510. 
trover,  requisites  of,  ix.  070. 


GENERAL  INDEX.  635 

Declaration  of  trust,  what  amounts  to  a,  x.  193. 

Declaratory  statute,  effect  of  repeal  of,  ix.  225. 

Decree  of  a  Court  of  Chancery,  effect  of,  ii.  087  ;  iii.  554. 

in  rem,  effect  of,  ii.  745. 
Dedi  ct  concessi,  effect  of,  iv.  519  ;  v.  001. 
Dedication  of  land  to  public  use,  what  is,  iv.  GG7. 
Dedimus  potestatem,  what,  iv.  259. 

how  to  be  executed,  iv.  259. 
Deed,  several  parts  of,  iv.  212. 
premises  of,  iv.  212. 
habendum  of,  iv.  214. 
tenendum  of,  iv.  218. 
reddendum  of,  iv.  218. 
warranty  of,  iv.  219. 
clause  of  cujus  rei  testimonium,  iv.  219. 
date  of,  iv.  219. 
attestation  clause,  iv.  220. 
who  mav  make  a,  iv.  220. 
requisite  to  a  grant,  iv.  517. 
belongs  ro  the  owner  of  the  inheritance,  iv.  84. 
distinction  between  a  will  and  a,  viii.  383. 
when  the  deposit  of,  makes  a  mortgage,  vii.  35. 
of  a  corporation,  effect  of,  ii.  452  ;  v.  539. 
assignees  of  bankrupt,  effect  of,  i.  815. 
when  lost,  how  proved,  iii.  580. 
evidence  of,  iii.  591. 
copy  of,  when  evidence,  iii.  592. 
required  to  make,  ecclesiastical  lease,  v.  482. 
declaring  the  uses  of  feoffments,  fines,  and  recoveries,  x.  1$0. 
Defamation,  degree  of,  to  make  a  libel,  vi.  338. 
Defeasance,  effect  of  deed  of,  vii.  48,  49. 
Defect  of  form  in  pleading,  how  cured,  vii.  459,  041. 

when  cured,  vii.  503,  534. 
what,  cured,  vii.  53G,  642. 
in  summoning  a  jury,  when  cured,  v.  376. 

aided,  v.  382. 
what,  cured  by  verdict,  x.  354. 
Defence,  what,  vii.  525. 

kinds  of,  vii.  525. 

half,  vii.  525. 
full,  vii.  525. 
form  of,  vii.  525. 

not  made  to  scire  facias,  vii.  526. 
defectively  stated,  when  cured,  vii.  534. 
in  error,  what  may  be  made,  iii.  380. 
to  a  scire  facias,  what  can  be  a,  viii.  025. 
Defendant,  when  entitled  to  costs,  ii.  502. 

in  execution,  effect  of  death  of,  iii.  704. 
Degrees  of  kindred,  what,  vi.  457,  458,  459. 
Del  credere  commission,  what,  vi.  569. 

effect  of,  vi.  569,  571. 
Delegates,  courts  of,  ii.  721. 

Delegation  of  authority,  when  it  cannot  be,  iii.  520. 
D  'livery  of  deed,  what  is,  iii.  585. 
effect  of,  iv.  212. 
when  requisite,  iv.  212. 
to  be  made,  iv.  212. 
to  take  effect,  v.  486. 
deed  of  corporation  does  not  require  a,  v.  539. 
requisite  to  make  a  bond,  vii.  243. 
possession  is  prima  facie  evidence  of,  vii.  245. 
of  property,  when  to  be  made,  ii.  329,  330. 
Demand,  when  uncertain,  will  not  authorize  the  holding  the  defendant  to  bail,  i.  »4:;. 
of  thing  bailed  must  be  made  before  action  brought,  i.  6d7. 


636  GENERAL  INDEX. 

Demand  of  rent,  when  required,  viii.  481. 

place  of  making  a,  viii.  487. 
requisite  to  entitle  a  party  to  make  a  re-entry,  ii.  312. 
how  released,  viii.  283. 

of  payment  of  bill,  when  to  be  made,  vi.  823. 
Demandant  in  formedon,  must  set  forth  his  title,  iv.  379. 
Dementia,  what,  v.  6. 
Demise,  import  of  the  term,  ii.  556,  587. 

effect  of  this  word  in  a  lease,  v.  C01. 
what  amounts  to  a  present,  v.  608. 
termination  of  a,  v.  612. 
of  lessor  of  plaintiff  in  ejectment,  iii.  278. 
Demurrer,  what,  vii.  662. 

may  be  to  one  count  and  plea  to  another,  \y.i.  662. 
form  of,  vii.  663. 

what  facts  are  admitted  by,  vii.  664. 
judgment  on,  vii.  665. 

when  quod  recuperet,  vii.  666. 

quod  respondeat  ouster,  vii.  666. 
what  is  good  on  general,  vii.  668. 
difference  between  general  and  special,  vii.  667. 
to  evidence,  vii.  672. 
Demurrant,  meaning  of,  viii.  669. 
Denial  of  debtor,  when  an  act  of  bankruptcy,  i.  803. 
Denizen  cannot  sit  in  parliament,  ii.  661. 
Denization,  what,  i.  11)8. 
Deodand,  what,  iii.  102. 

who  is  entitled  to,  viii.  117. 
Departing  the  realm,  an  act  of  bankruptcy,  i.  642. 

from  dwelling,  an  act  of  bankruptcy,  i.  643. 
Departure,  what,  vii.  462,  601,  651. 
Depasturing,  what,  x.  12. 
Dependent  covenants,  what,  ii.  551. 
Deposit,  what,  i.  606. 

of  title-deeds,  when  an  equitable  mortgage,  vii.  32. 
effect  of  deposit  by  an  3gent,  vii.  34. 
Depositions  when  allowed,  iii.  513. 

suppressed,  iii.  527,  528. 
may  be  written  by  a  clerk  to  the  commissioners,  iii.  527. 
in  what  language  they  may  be,  iii.  530. 
under  the  acts  of  Congress,  iii.  532. 
effect  of,  iii.  560. 

when  witness  is  dead,  iii.  561. 

absent,,  iii.  561. 
sick,  iii.  561. 
-  confined  to  the  parties,  iii.  562. 

when  witness  becomes  interested,  iii.  563. 
Deputation  to  an  office,  how  grantable,  vii.  318. 
Deputy,  who  is  a,  vii.  316. 
duties  of,  vii.  316. 
who  may  make  a,  vii,  316,  317. 
judicial  officer  cannot  make  a,  vii.  317. 
judge  cannot  act  by,  vii.  317. 
constable  may  appoint  a,  vii.  317. 
a  deputy  cannot  make  a,  vii.  318. 
bond  of,  when  void,  vii.  299. 

sheriff  may  serve  a  summons  in  favour  of  a  town,  though  an  inhabitant,  i.  599. 
actions  against,  i.  602. 

all  such  deputies  considered  but  one  officer,  i.  599. 
when  liable  for  an  escape,  iii.  407. 
implied  appointment  of,  viii.  671.     See  Sheriff. 
continuance  of  his  appointment,  viii.  673. 
what  acts  may  be  done  by,  viii.  675. 
manner  of  appointing,  viii.  677,  678. 
cannot  make  a  deputy,  viii.  678. 


GENERAL   INDEX.  637 

Derelict  lands  belong  to  the  king,  viii.  13. 

property  at  6ea,  -who  is  the  owner  of,  viii.  36. 

entitled  to  salvage  of,  viii.  37. 
goods,  prerogative  of,  viii.  41. 
Descendible,  a  use  is,  x.  119. 
Descent,  what,  iii.  104. 
lineal,  iii.  105. 
collateral,  iii.  106. 
of  the  half-blood,  iii.  107. 
according  to  custom,  iii.  111. 
operation  of,  to  take  away  entry,  iii.  118. 
entry  of  disseisee,  notwithstanding  a,  iii.  121. 

preserved,  notwithstanding  a,  iii.  125. 
effect  of  continual  claim  on,  iii.  26. 
general  rules  of,  in  the  United  States,  iii.  130. 
Descendants,  effect  of  legacy  to,  vi.  150.  _ 
Description  of  legatee,  when  sufficient,  vi.  170. 

thing  given,  when  sufficient,  vi.  190. 
Desertion  of  seamen,  effect  of,  vi.  609,  010. 

how  punished,  ix.  165,  179. 
Desire,  effect  of  this  word  in  a  will,  vi.  166. 
Detention  of  ship,  effects  of,  vi.  663. 
Detinet,  when  actions  may  be  in  the,  iv.  127,  134. 
Detinue,  what,  iii.  133. 

by  and  against  whom  it  lies,  iii.  134. 
lies  for  what,  iii.  135. 
pleadings  and  evidence  in,  iii.  136. 
judgment  in,  iii.  137. 
Devastavit,  what,  iv.  100. 

who  liable  for,  iv.  100. 
payment  of  debts  when  a,  iv.  105. 
effect  of  return  of,  iv.  120. 
Deviation,  rights  of  parties  when  there  has  been  a  special  agreement,  and  a,  i.  457. 
in  building,  when  an  injunction  will  not  lie  to  prevent  a,  v.  212. 
insurance,  what,  vi.  714. 

when  justified,  vi.  718,  719. 
not,  vi.  714. 
Devise,  what,  iii.  137.     See  Witts. 

of  lands,  by  whom  may  be  made,  vi.  7. 

to  husband  and  wife,  effect  of,  vi.  8,  19. 
what  estate,  vi.  10. 
after-acquired  land,  effect  of,  vi.  12. 
land  of  which  testator  is  disseised,  effect  of,  vi.  12. 
this  word  not  indispensable  in  a  will,  vi.  16. 
of  terms  for  years,  vi.  72. 

for  payment  of  debts  or  legacies,  vi.  75.  , 

of  rents,  effect  of,  vi.  82. 
for  payment  of  portions,  vi.  83. 
by  implication,  vi.  85, 
executory,  of  lands  of  inheritance,  vi.  91. 

leases  for  years,  vi.  108. 
over  "without  leaving  issue,"  vi.  116. 
to  survivor,  effect  of,  vi.  116. 
void,  when,  vi.  119,  144. 
to  issue,  vi.  147,  149. 
family,  vi.  148. 
relations,  vi.  148. 

persons  of  testator's  name  and  blood,  vi.  148. 
children,  vi.  149. 
descendants,  vi.  150. 
Devisee,  who  may  be,  vi.  7. 

infant  in  ventre  sa  mere,  vi.  9, 
who  cannot  be,  vi.  9. 

monk,  vi.  10. 
alien,  vi.  10. 

3H 


638  GENERAL   INDEX. 

Devisee,  who  cannot  be,  bastard,  when,  vi.  10. 
effect  of  describing  him  as  heir,  vi.  18. 
when  charged  with  the  payment  of  a  sum  of  money,  vi.  18. 
effect  of  dying  in  the  lifetime  of  devisor,  vi.  157. 
may  distrain,  when,  iii.  165. 
of  equity  of  redemption,  right  of,  vii.  58. 
Devisor,  who  may  be,  vi.  7. 

cannot  be,  vi.  7. 

wife,  vi.  7. 
infant,  vi.  8. 
felo  de  se,  vi.  1 0. 
surviving  devisee,  effect  of,  vi.  157. 
Diligence  required  to  entitle  a  party  to  a  new  trial,  ix.  619. 
Diminution  of  record,  allegation  of,  iii.  344. 
Directors  of  bank,  when  and  how  liable  for  damages,  iii.  66. 

a  corporation  when  indictable  for  a  nuisance,  v.  84. 
Disability  to  save  statute  of  limitations,  vi.  368. 
infancy,  vi.  368. 
coverture,  vi.  368. 

one  cannot  be  added  to  another,  vi.  389. 
of  papists,  vii.  371. 
Discharge  of  insolvent  when  valid  in  another  state,  i.  550. 
bail,  what,  i.  567. 
when  it  must  be  pleaded,  i.  569. 

of  principal  under  bankrupt  or  insolvent  laws  before  bail  is  fixed,  i.  570. 
what  may  be  pleaded  in,  i.  459. 
of  bankrupt,  effect  of,  i.  771,  807. 
from  commitment,  how  effected,  ii.  259. 
of  tithes,  by  grant,  x.  65. 
bull,  x.  65. 
order,  x.  66. 

unity  of  possession,  x.  70. 
Disclaimer,  plea  of,  vii.  616. 
Discontinuance,  what,  iii.  138  ;  vii.  684. 

made  by  ecclesiastical  persons,  iii.  139. 
tenant  in  tail,  iii.  140. 
husbands  as  such,  iii.  143. 
women  of  husband's  gifts,  iii.  144. 
of  what  estate  it  may  be,  iii.  147. 
what  acts  amount  to  a,  iii.  149. 
when  by  leave  of  court,  vii.  684. 
to  be  aided,  vii.  684. 
Discount,  what,  viii.  640. 
Discretion  when  a  court  may  or  may  not  grant  a  mandamus  according  to  its,  vi.  443. 

courts  may  exercise  a,  as  to  granting  or  refusing  a  habeas  corpus,  iv.  575. 
Disjunctive  covenants,  how  to  be  pleaded,  vii.  594. 
rent  may  be  reserved  in  the,  viii.  460. 
terms,  effect  of,  x.  540. 
words,  how  construed,  ix.  80. 
Disobedience  to  a  supersedeas,  how  punished,  ix.  293. 
Dispensation  of  a  breach,  what  shall  be,  ii.  315. 

the  laws,  when  in  England,  viii.  66. 

never  in  the  United  States,  viii.  67. 
Disseisee,  lease  by,  when  good,  v.  559. 
Disseisin,  what,  iii.  150. 

what  acts  amount  to  a,  iii.  150. 
persons  capable  of  committing,  iii.  161. 
when  the  entry  of  the  lessee  is  a,  v.  642. 
Disseisors  may  be  joint-tenants,  v.  242. 

when  lease  by,  is  good,  v.  559. 
Dissenters,  how  far  incapable  to  hold  office,  vii.  312. 
Dissolution  of  partnership,  effect  of,  vi.  582,  587. 

notice  of,  vi.  582,587,  591. 
by  death,  vi.  589. 
lunacy,  vi.  589. 
notice  of  either  partner,  vi.  589. 


GENERAL   INDEX.  639 

Dissolution  of  partnership  by  parol  agreement,  vi.  590. 

bankruptcy,  vi.  590. 
war,  vi.  590,  591. 
corporation,  how  effected,  ii.  480. 
injunction,  how  made,  v.  219. 
when,  v.  220. 
for  what  causes,  v.  220. 
parliament,  when  to  take  place,  ii.  675. 
Distress,  what,  iii.  103. 

origin  of,  viii.  440. 
remedy  by,  viii.  492. 
by  whom  it  may  be  made,  iii.  164. 
sole  owner,  iii.  164. 
joint-tenants,  iii.  165. 
tenants  in  common,  iii.  165. 
husband,  in  right  of  wife,  iii.  165. 
tenant  by  the  curtesy,  iii.  165. 
widow,  iii.  165. 
tenant  for  life,  iii.  165. 
personal  representatives,  iii.  165. 
heir,  iii.  165. 
devisees,  iii.  165. 
trustees,  iii.  165. 
guardians,  iii.  165. 
corporations,  iii.  165. 
for  what  things,  iii.  171. 

rent,  iii.  176. 
time  and  place  of  making,  iii.  177. 
distrainer's  interest  in,  iii.  179. 
manner  of  making,  iii.  180. 
how  to  be  used,  iii.  180. 
how  impounded,  iii.  182. 
when  replevied,  iii.  184. 
excessive,  what,  iii.  185. 
of  cattle,  &c,  damage-feasant,  iii.  187. 
for  amercements,  iii.  189. 
Distribution  of  the  bankrupt's  estate,  how  made,  i.  765. 

personal  estate,  how  made,  iv.  92. 
District  Courts,  ii.  814. 

organization  of,  ii.  814. 
jurisdiction  of,  ii.  815  ;  viii.  101. 
civil,  ii.  815. 
criminal,  ii.  819. 
District  of  Columbia,  jurisdiction  of  the  District  Court  of  the,  i.  815. 
Distringas,  when  to  be  issued  against  a  corporation,  ii.  450. 
juratores,  object  of,  v.  315. 
fi.  fa.,  how  to  be  executed,  v.  315. 
Disturbance  of  an  office,  how  punishable,  vii.  305. 
Dividable,  what  things  are  and  are  not,  ii.  358. 
Dividends  in  bankruptcy,  i.  813. 
Divine  service,  tenure  by,  ix.  371. 
Divisable,  when  a  contract  is,  i.  411,  415;  ii.  569. 
Division  of  township,  effect  of,  ix.  505. 
Divorce  and  marriage,  vi.  454. 
kinds  of,  vi.  496. 
how  obtained,  vi.  496. 
for  what  causes  obtained,  vi.  496. 
impotence,  vi.  497. 
pre-contract,  vi.  497. 
adultery,  vi.  497. 
abuse,  vi.  499. 
when  not  granted,  vi.  499. 
who  may  institute  proceedings  for,  vi.  498,  500. 
of  marriages  made  in  another  state,  vi.  499. 
a  mensd  et  thoro,  effects  of,  ii.  65,  66. 


640  GENERAL   INDEX. 

Divorce,  effect  of,  on  property  of  the  wife,  ii.  22. 
Docket  entries,  effect  of,  iii.  535,  548. 
Dog,  not  the  subject  of  larceny,  iv.  178. 

may  be  lawfully  killed,  when,  iv.  433;  ix.  506.  ' 

when  owner  of,  is  liable  for  his  injuries,  ix.  473. 
Dominium  directum,  what,  v.  433. 

utile,  what,  v.  433. 
Domilae  naturae,  it  is  larceny  feloniously  to  take,  iv.  179. 
Donatio  mortis  causa,  what,  vi.  160 

requisites  of,  vi.  160,  161. 
subject  of,  vi.  163. 
Door,  when  it  may  be  broken  to  make  an  arrest,  i.  600;  ix.  488,  489. 
sheriff  may  break,  iii.  732,  733  ;  viii.  696. 
what  is  an  outer,  viii.  697. 
Double  costs,  when  allowed,  ii.  498. 
what,  ii.  500. 
c'unvages,  when  allowed,  iii.  81. 

declaration  for,  vii.  495. 
insurance,  what,  vi.  713. 
pleading,  when  allowed,  vii.  648 
rent,  what,  viii.  499. 
value,  what,  viii.  499,  502. 
voucher,  what,  iv.  294. 
Dove-houses,  waste  to,  x.  428. 

Doves,  when  they  descend  to  the  heirs  or  go  to  the  executor,  iv.  83. 
are  not  subjects  of  larceny,  iv.  432. 
ferae  naturae,  vii.  226. 
Dower,  what,  iii.  190. 

who  is  or  is  not  entitled  to,  iii.  192. 

disabilities  of  husband  or  wife  respecting,  iii.  192. 

estate  in  which  woman  may  have,  iii.  194,  195. 

quarantine  as  to,  iii.  194. 

kind  of  inheritance  out  of  which  it  issues,  iii.  195. 

nature  of  estate  out  of  which  it  issues,  iii.  199. 

continuance,  iii.  203. 

improvements  of  husband's  estate,  how  valued,  iii.  205. 

requisites  to  consummation  of,  iii.  20G. 

seisin  required  in,  iii.  207. 

death  of  husband,  required  in,  iii.  210. 

assignment  of,  iii.  210. 

by  what  persons,  iii.  210. 
in  what  manner,  iii.  211. 
by  wnat  court,  iii.  214. 
election  of  wife  as  to,  iii.  215 
what  is  a  Oar  to,  iii.  218. 

when  held  subject  to  husband's  encumbrances,  iii.  236. 
services  due  by  tenant  in,  iii.  237. 
proceedings  and  damages  in,  iii.  238. 
damages  in,  iii.  246. 
admeasurement  of,  iii.  246. 
by  custom,  iii.  247. 
id  ostium  ecclesia,  iii.  250. 
de  la  plus  belle,  iii.  251. 

how  to  be  affected  by  husband's  forfeiture,  iv.  348. 
cannot  be  had  in  a  use,  x.  125. 
Dowress  may  redeem  a  mortgage,  vii.  78. 
Drawback,  what  goods  are  entitled  to,  ix.  132. 
Drawer  of  a  bill,  liability  of,  vi.  785. 
when  liable,  vi.  785. 
Driver,  when  master  answerable  for  injuries  of,  vi.  539,  541. 
Droit,  petition  de.  viii.  107. 

monstrans  de,  viii.  107. 
Drunkard,  it  is  a  fraud  to  obtain  a  note  from  a,  iv.  387. 

when  it  is  slander  to  charge  one  with  being  a,  ix.  48,  49. 
cannot  make  a  will,  when,  x.  483. 


GENERAL  INDEX.  641 


Drunkenness,  offence  of,  iv.  G41. 
effect  of,  v.  5,  G. 

on  contract,  vii.  247. 
Duel,  death  by,  is  murder,  vii.  190. 

Duelling,  act  of  N.  Y.  respecting,  is  constitutional,  vii.  284. 
Duplication  of  a  legacy,  what  is,  vi.  205. 
Duplicity,  what,  vii.  642,  044. 

how  to  take  advantage  of,  vii.  042. 
Duration  of  an  office,  vii.  307. 

lease  fur  years,  v.  029. 
Duress,  what,  iii.  252. 

on  whom  and  by  whom  committed,  iii.  254. 
contracts  avoided  by,  iii.  255. 

how  avoided,  iii.  255. 
effect  of,  vii.  246. 

will  not  defeat  a  fine,  when,  iv.  250. 
grants  by  persons  in,  void,  iv.  500. 
avoids  marriage,  when,  vi.  462. 
Durham,  county  palatinate  of,  ii.  759. 
Dutchy  court  of  Lancaster,  ii.  760. 
Duties  on  wool,  wool  fells,  and  leather,  ix.  117. 
of  tonnage,  ix.  119,  120,  122. 

poundage,  ix.  120. 
on  wrecked  goods,  what,  ix.  129. 
to  which  aliens  are  liable,  ix.  130 
how  levied  by  the  English  king,  viii.  129. 
Dying  declarations,  when  evidence,  iii.  030. 

not  evidence  in  civil  cases,  iii.  032. 
without  issue,  meaning  of,  vi.  113. 

E. 

Earl  marshal's  court,  established,  ii.  706.^ 
Ease  and  favour,  effect  of  securities  for,  viii.  712. 
Ecclesiastical  courts,  origin  of,  ii.  717. 
the  several,  ii.  717. 
appeals  to,  ii.  723. 
jurisdiction,  ii.  724;  viii.  56,  57. 
matters,  king's  prerogative  in,  viii.  5G. 
Ecclesiastics,  discontinuance  by,  iii.  139. 

how  to  make  a  grant,  iv.  503. 
Effect,  patent  cannot  be  granted  for  an,  viii.  136. 
of  a  set-off,  viii.  659. 
tender,  ix.  328. 
profert  in  curia,  ix.  338. 
bringing  money  into  court,  ix.  345. 
Effects,  meaning  of  this  word,  vi.  28. 
E^gs,  when  tithable,  x.  24. 
Ejectment,  what,  iii.  256. 

nature  of  action,  iii.  257. 
parties  in,  iii.  259. 
adding  parties  in,  iii.  267. 
proceedings  in,  iii.  260. 

declaration,  iii.  200. 
costs,  iii.  268. 
ancient  form,  iii.  270. 
declaration  in,  iii.  272. 
what  things  will  lie,  iii.  272. 
description  of  subject  of,  iii.  274. 
demise  of  lessor  in,  iii.  278. 
ouster  of  lessor  in,  iii.  278. 
plea  and  general  issue  in,  iii.  291. 
verdict  and  judgment  in,  iii.  292. 
execution  in,  iii.  294. 

when  to  be  sued  out,  iii.  294. 

Vol.  X.— 81  3  ii  2 


G42  GENERAL  INDEX. 

Ejectment,  execution  how  executed,  iii.  297. 

controlled  by  plaintiff  in,  iii.  298. 
mesne  profits  in,  iii.  300. 
bringing  a  second,  iii.  304. 
may  be  maintained  by  executors,  iv.  126. 
when  money  may  be  tendered  in  an  action  of,  ix.  356. 
when  a  new  trial  will  be  granted  in,  ix.  624. 
Ejusdem  generis,  what  goods  will  pass  as  being,  vi.  192. 
Election,  what,  iii.  307. 

when  given,  iii.  307. 
to  whom  given,  iii.  309. 
how  continued,  iii.  310. 

determined,  iii.  310. 
what  is  a  sufficient,  iii.  314. 
when  party  shall  be  put  to  his,  iii.  314. 

widow  shall  have  her,  iii.  215. 
of  members  of  corporations,  ii.  465. 
Electors  of  members  of  parliament,  who  are,  ii.  657. 
Elegit,  what,  iii.  688. 

when  it  may  be  issued,  iii.  664. 
how  executed,  viii.  709. 
Ehngata,  effect  of  return  of,  viii.  549. 
Elopement,  effect  of,  vi.  491. 
Ely,  royal  franchise  of,  ii.  761. 
Embargoes,  king  may  lay,  viii.  63. 

Emblements  of  mortgaged  premises,  who  is  entitled  to,  vii.  60. 
Embracery,  what,  v.  391. 

Emission,  proof  of,  when  not  required  in  sodomy,  ix.  158. 
Employment,  what,  vii.  279. 
Enacting  clause,  how  restrained,  ix.  241. 
Enclosure  of  copyhold  lands  is  a  forfeiture,  ii.  417. 
Encumbrances,  covenant  against,  effect  of,  ii.  584. 

breach  of,  ii.  595. 
notice  of,  vii.  98. 

to  whom  given,  vii.  124. 
priority  of,  vii.  99. 

by  one  joint-tenant,  effect  on  joint-tenancy,  v.  288. 
Endorsement  on  bond,  effect  of,  vi.  777. 

one  bill,  effect  of,  vi.  788. 
by  Avhat  law  governed,  vi.  785. 
effect  of,  vi.  789. 

by  minor,  when  considered  as  fraudulent,  iv.  387. 
Endorser,  liability  of,  vi.  785. 
when  liable,  vi.  785. 

not  liable,  vi.  786. 
on  a  note  to  wife,  husband  may  be,  vi.  793. 

testator,  executor  may  be,  vi.  793. 
a  firm,  one  partner,  may  be,  vi.  792. 
of  a  bill  may  be  bail  for  drawer,  i.  562. 
Enemy,  contract  with,  how  far  valid,  i.  444. 

goods  of,  liable  to  capture,  ii.  747,  748. 
cannot  sue,  vi.  556. 

resident  in  country  of  enemy,  cannot  sue,  vi.  557. 
who  is  trustee  cannot  sue,  vi.  557. 
Enfeoff  and  grant,  effect  of  these  words,  ii.  558. 
English  government,  a  monarchy,  viii.  6. 

Engravings,  when  injunction  lies  to  prevent  publication  of,  v.  199. 
Engrossing,  an  offence,  iv.  335. 
Enitia  pars,  what,  ii.  360. 

whence  derived,  ii.  361. 
Enlargement,  how  far  releases  mure  by  way  of,  viii.  264. 
Enlisting  soldiers,  what  is,  ix.  161. 

Enlistment  of  principal  does  not  discharge  the  bail,  i.  570. 
Enrolment  of  bargain  and  sale,  ii.  8. 
Entails,  manner  of  docking,  ii,  372. 


GENERAL  INDEX.  643 

Entire  contract  cannot  be  divided,  i.  411,  415. 
Entreat,  effect  of  this  word  in  a  will,  vi.  166. 
Entry  in  burglary,  what  is  sufficient,  ii.  134. 
for  condition  broken,  effect  of,  ii.  31G. 
by  one  coparcener,  effect  of,  ii.  357. 
of  lessor  of  plaintiff  in  ejectment,  how  made,  iii.  278. 
when  remainderman's  right  of,  commences,  iii.  279. 
right  of,  how  exercised,  iii.  280i 
operation  of,  taken  away  by  descent,  iii.  118. 
of  disseisee,  notwithstanding  a  descent,  iii.  121. 
preserved  notwithstanding  a  descent,  iii.  125. 

by  continual  claim,  iii.  12G. 
of  lessee  when  required  to  perfect  his  lease,  v.  631. 

a  disseisee,  v.  642. 
effect  of,  to  bar  the  act  of  limitations,  vi.  370. 
Equality,  when  requisite  in  partition,  ii.  363. 
Equally,  effect  of  this  word,  vi.  179. 
Equitable  assets,  how  distributed,  iv.  111. 
mortgage,  what,  vii.  32,  102. 

effect  of,  vii.  33. 
construction,  when  statutes  must  have  an,  ix.  248. 
Equity,  an,  a  sufficient  consideration  to  support  a  contract,  i.  425. 
jurisdiction  of  C.  C.  in,  ii.  813. 
D.  C.  in,  ii.  819. 
of  redemption,  what,  vii.  62. 

when  dower  may  be  had  in,  iii.  198. 
cannot  be  sold  under  execution,  when,  iii.  702. 
may  be  sold  under  execution,  when,  iii.  702. 
a  party  who  seeks,  must  do,  vii.  240. 
will  grant  relief  in  cases  of  waste,  when,  x.  474. 
what,  ix.  249. 
Ercgimvs,  when  required  in  a  commission,  vii.  290. 
Error,  writ  of,  what,  iii.  320. 

when  a  proper  remedy,  iii.  322. 
on  what  judgments  it  lies,  iii.  326. 

a  habeas  corpus,  iii.  325. 
in  criminal  cases,  iii.  326. 
on  the  judgment  of  what  court,  iii.  329. 
who  may  bring,  iii.  330,  336. 
against  whom,  iii.  330. 
time  of  bringing  a,  iii.  336. 
when  it  is  a  supersedeas,  iii.  336. 
manner  of  bringing  a,  iii.  337. 
form  of,  iii.  337. 
to  whom  directed,  iii.  239. 
how  record  removed,  iii.  341. 
diminution  of  record  in,  iii.  344. 
scire,  facias,  on,  iii.  349. 
abatement  of,  iii.  352. 
how  far  a  supersedeas,  iii.  354. 
to  what  court  it  lies,  iii.  358. 
into  parliament,  iii.  358. 

Exchequer  Chamber,  iii.  360. 
King's  Bench,  iii.  364. 
Common  Pleas,  iii.  365. 
the  court  where  the  record  is,  iii.  366. 
Supreme  Court  of  the  IT.  S.,  iii.  367. 
Circuit  Court  of  the  U.  S.,  ii.  799. 
state  courts,  ii.  800. 
manner  of  assigning,  iii.  368. 
in  law  and  in  fact,  iii.  370. 
apparent  on  the  record,  iii.  371. 

which  is  for  party's  advantage,  how  assigned,  iii.  373. 
how  aided  by  party's  appearance,  iii.  377. 
defence  of  defendant  in,  iii.  380. 


G44  GENERAL  INDEX. 

Error,  judgment  in,  iii.  383. 

for  part,  iii.  383. 
on  reversal,  iii.  386. 
restitution  on  reversal,  when  allowed,  iii.  389. 
bail  in,  i.  552. 
costs,  in,  ii.  528. 
Escape  in  civil  cases,  what,  iii.  391. 

from  what  imprisonment,  iii.  392. 

when  lawfully  dischai-ged,  not  an,  iii.  393. 

imprisonment  is  regular,  iii.  395. 
what  liberty  is  an,  iii.  398. 

shall  excuse  an,  iii.  400. 

be  deemed  an,  though  the  party  is  in  confinement, 
iii.  402. 
difference  between  voluntary  and  negligent,  iii.  403.^ 

on  mesne  process  and  execution,  iii.  404. 
who  answerable  for,  iii.  406. 
when  principal  or  deputy  liable  for,  iii.  407. 
plaintiff's  remedy  against  prisoner  for,  iii.  409. 
remedy  or  action  for,  iii.  413. 
manner  of  laying  action  for,  iii.  415. 
excuse  for  permitting,  iii,  419. 
liability  of  sheriff  for  an.  viii.  693. 
Escheat,  who  is  entitled  to,  viii.  15. 

requisites  of  inquisition  in,  viii.  18. 
Escheator,  duties  of,  viii.  17. 
Escrow,  what,  vii.  244. 

to  whom  the  delivery  of  an,  must  be,  vii.  244,  245. 
how  pleaded,  vii.  545. 
Escuage.  what  is  tenure  by,  ix.  374. 
Espousals,  what,  vi.  460. 
Ksquire,  addition  of,  vii.  10. 
Estate  in  fee  simple,  what,  iii.  421. 

who  may  purchase  an,  iii.  421. 
import  of  heir  to  create  an,  iii.  424. 
tail,  what,  iii.  428.     See  Tail. 

after  possibility  of  issue  extinct,  who,  iii.  448. 

estate,  how  created,  iii.  448  ;  vi.  31. 
tenant,  how  considered,  iii.  451. 
belonging  to  a  bankrupt  passes  to  his  assignees,  i.  720. 
for  life,  what,  iii.  453. 

effect  of,  death  of  tenant  of  an,  iii.  456. 
special  occupant  of,  iii.  460. 
may  be  disposed  of,  how,  iii.  464. 
forfeited,  how,  iii.  466. 
right  and  duties  of  tenants  of,  iii.  471. 
how  far  restored  by  re-entry,  ii.  316. 
which  may  be  devised,  vi.  10. 

wife's  lands,  vi.  11. 
cannot  be  devised,  when,  vi.  12. 

after-acquired  lands,  vi.  12. 
effect  of  this  word  in  a  will  to  pass  a  fee,  vi.  23. 
Estates  of  the  realm,  what  are  the,  viii.  6,  7. 
Estoppel  in  pleading,  what,  vii.  618. 

kinds  of,  vii.  618. 
requisites  of,  vii.  618,  623 
strangers  not  affected  by,  vii.  620 
privies  bound  by,  vii.  620. 
leases  for  years  by,  v.  636. 
Eetrcpement,  when  it  lies,  x.  467. 
Estovers,  common  of,  ii.  261. 
Estreat  of  a  fine,  how  made,  v.  418. 
Etc.,  effect  of,  in  ploadings,_  vii.  525. 
Evasion,  when  fraudulent,  iv.  385,  386. 
Evidence  in  detinue,  iii.  136. 
what,  iii.  472. 


GENERAL  INDEX.  645 

Evidence,  who  may  be  a  witness,  iii.  473. 

slave,  when,  iii.  473. 
infant,  when,  iii.  473. 
heathen,  iii.  474. 
lunatics,  iii.  474. 
party,  iii.  475. 
husband,  iii.  475. 
wife,  iii.  475. 
widow,  iii.  478. 
written,  iii.  533. 

parol,  when  allowed  to  explain  writing,  iii.  604. 
presumptive,  what,  iii.  G17. 
the  best,  required,  iii.  625. 
hearsay,  effect  of,  iii.  629. 
depositions  in  another  cause,  when,  iii.  641. 
res  gestae,  when,  iii.  641. 

what  may  be  given  in,  under  the  general  issue,  vii.  541. 
demurrer  to,  vii.  672. 

required  in  actions  by  assignees  of  bankrupt,  i.  754. 
cases  of  bastardy,  ii.  106. 

bigamy,  ii.  109,  110. 
to  sustain  actions  against  the  hundred  under  the  statute  of  hue  and 

cry,  iv.  706. 
in  cases  of  insurance,  vi.  739. 
treason,  ix.  428. 
trespass,  ix.  540. 
trover,  ix.  677. 
usury,  x.  304. 
Ex  post  facto  law,  not  to  be  passed,  viii.  44. 
effect  of  these  words,  ix.  229. 
Examination  of  witness,  how  made,  iii.  512. 

trial  upon  the,  ix.  555. 
in  perpetuam  rci  memoriam,  iii.  528. 
de  bene  esse,  iii.  529. 

under  the  1  &  2  P.  &  M.  c.  13,  g  4,  iii.  566. 
Exceptions  in  the  statute  of  limitations,  vi.  388. 
as  to  infants,  vi.  388. 

merchants'  accounts,  vi.  389. 
persons  beyond  sea,  vi.  391. 
want  of  parties,  vi.  393. 

court,  vi.  395. 
commencement  of  action,  vi.  397. 
Exchequer,  courts  of,  ii.  698. 

several  courts  of,  ii.  699. 
form  of  proceedings  in,  ii.  705. 
Excommunicato  capiendo,  writ  of,  iii.  654. 
Excommunication,  what,  iii.  643. 

when  made,  iii.  644. 
of  person,  when  ipso  facto,  iii.  646. 
by  whom  pronounced,  iii.  648. 
effects  of,  iii.  652. 
absolution  to  purge,  iii.  661. 
Excusable  homicide,  what,  vii.  211. 

waste,  what,  x.  434. 
Execution,  what,  iii.  602. 

definition  and  nature  of  an,  iii.  663. 

cannot  be  inquired  into,  iii.  663. 

when  void,  iii.  663. 

of  elegit,  iii.  664. 

on  what  judgment,  iii.  665. 

recognisance  may  issue,  iii.  669. 
may  issue,  at  what  time,  iii.  670. 
against  whom  to  be  issued,  iii.  673. 
what  things  bound  by,  iii.  675. 
form,  return  and  teste  of,  iii.  686. 
capias  ad  satisfaciendum,  iii.  694. 


646  GENERAL  INDEX. 

Execution,  fieri  facias,  iii.  698. 

■what  property  may  be  sold  under  an,  iii.  701. 

plaintiff'  can  issue  only  one,  iii.  703. 

when  fraudulent,  iii.  704. 

vest  property  in  sheriff,  iii.  704. 

priority  of,  iii.  705. 

plaintiff  may  select,  iii.  707. 

when  not  superseded  by  certiorari,  ii.  179. 

habere  facias,  iii.  707. 

who  may  sue  out,  iii.  716,  7i.8. 

may  issue  against  whom,  iii.  7 18. 

heir  and  exc<  iifcor,  when,  iii.  719. 
infants,  when,  iii.  720. 
feme  covi  tfc,  when,  iii.  721. 
privi'    ',  il  ;i      cms,  when,  iii.  721. 
clerk  in  holy  orders,  when,  iii.  722. 

binds  the  goods,  when,  i;'.  70-j. 

relation  of,  iii.  725. 

king's  precedency  in,  iii.  730. 

by  whom  to  be  executed,  iii.  731. 

sheriff  compelled  to  execute,  iii.  732. 

authority  of  sheriff  to  do,  iii.  732. 

offence  of  hindering,  iii.  734. 

irregular,  how  remedied,  iii.  736. 

erroneous,  effects  of,  iii.  738. 

in  ejectment,  iii.  294. 

escape  on,  effect,  iii.  404. 

of  writ,  how  made,  viii.  700. 

when  to  be  made,  viii.  701. 

duty  of  sheriff  when  he  has  several  executions,  viii.  702. 

priority  of,  viii.  707. 

when  merely  voidable,  viii.  601,  602. 
Executor,  definition  of,  iy.  5. 
king  may  be,  iv.  7. 
who  may  be,  iv.  7. 
corporations  may  be,  iv.  8. 
outlaw  may  be,  iv.  8. 
criminals  cannot  be,  when,  iv.  8. 
villein  may  be,  iv.  8. 
popish  recusant,  convict  cannot  be,  iv.  8. 
alien  may  be,  iv.  8. 
refusal  of,  iv.  52. 

idiots  and  lunatics  cannot  be,  iv.  9. 
infants  may  be,  when,  iv.  11. 
infant  in  ventre  sa  mire  may  be,  iv.  11. 
feme  covert  may  be,  iv.  12. 
feme  sole  may  be,  iv.  12. 

creditors  may  be,  iv.  13. 

effect  of  making  debtor  an,  iv.  15. 

de  son  tort,  who  is,  iv.  26. 

his  acts  when  valid,  iv.  31. 
how  purged,  iv.  32. 
what  he  may  plead,  iv.  32. 

how  appointed,  iv.  34. 

during  absence,  when  appointed,  iv.  37. 

with  limited  power,  iv.  37. 

how  answerable  for  each  other's  acts,  iv.  39. 

how  to  sue  and  be  sued,  iv.  41 ;  yii.  469,  470. 

what  he  may  do  before  probate,  iv.  63. 

liable  for  devastavit,  iv.  100. 

may  refer  to  arbitration,  Avhen,  iv.  101.  _ 

when  bound  to  plead  act  of  limitations,  iv.  102. 
to  be  charged  with  interest,  iv.  103. 

liable  for  his  false  pleading,  iv.  119. 

de  bonis propr Us,  when,  iv.  119. 


GENERAL   INDEX.  647 

Executor  liable  on  bis  promise,  when,  iv.  123,  124. 
accord,  iv.  124. 
power  of,  iv.  124. 
what  actions  he  may  maintain,  iv.  125. 

lie  against  him,  iv.  133. 
distinction  between  administrator  and,  iv.  133. 
liable  for  costs,  when,  iv.  141. 
bail,  when  not  required  from,  iv.  143. 

when  required  from,  iv.  143. 
may  submit  to  arbitration,  i.  314. 
sell  lands,  when,  i.  521. 

how,  i.  521. 
take  advantage  of  covenants  with  testator,  ii.  565. 
claim  rent,  when,  viii.  473. 
endorse  note  of  testator,  vi.  793. 
make  lease,  when,  v.  567. 
is  liable  on  promises  made  by  him,  when,  i.  172. 
to  an  audita  querela,  when,  i.  511. 
be  held  to  bail,  when,  i.  548. 

sued  on  testator's  covenant,  ii.  564. 
a  scire  facias,  when,  viii.  609. 
an  execution,  when,  iii.  719. 
costs,  when,  ii.  516. 
for  waste,  x.  447. 
when  there  are  several,  one  may  plead  the  act  of  limitations,  vi.  405. 
is  not  bound  to  plead  the  act  of  limitations,  vi.  406. 
Executory  devise,  what,  vi.  91. 

limitation  cannot  operate  as  an,  vi.  92. 
bequest  over,  effect  of  legacy  with  an,  vi.  266. 
contracts  of  bankrupt  pass  to  the  assignee,  when,  i.  763. 
fee,  how  limited,  x.  149. 

with  regard  to  freeholds,  x.  152. 
respect  to  chattels,  x.  154. 
Exemplification,  effect  of,  iii.  535,  539. 

under  acts  of  Congress,  iii.  536. 
Exempt,  who  is,  from  service  as  constable,  ii.  346. 
Exigent,  when  to  be  awarded,  vii.  350. 

to  whom  to  be  directed,  vii.  353. 
Exigi  facias,  effect  of,  vii.  341. 
Exilium,  what,  x.  421. 
Exoneretur,  when  allowed,  i.  568,  569,  570. 
Expiration  of  a  statute,  effect  of,  ix.  225. 
Extinguishment,  what,  iv.  143,  146. 

of  rent,  what,  iv.  144. 

copyhold,  what,  iv.  147  ;  ii.  411. 
common,  what,  iv.  148 ;  ii.  277. 
debts,  what,  iv.  149. 

how  made,  iii.  99. 
rent,  what,  viii.  523. 
a  legacy,  what,  vi.  198. 
claim,  what,  vii.  48. 

valid  award  is  an,  of  an  original  demand,  i.  348. 
when  a  bond  is  an,  of  a  former  debt,  vi.  237. 
release  inures  by  way  of,  viii.  262. 
Extortion,  what,  iv.  151,  167. 

of  justices  of  the  peace,  how  punished,  v.  426. 
Extrinsic  evidence,  when  proper  to  explain  a  will,  x.  537. 


F. 


Fact,  of  errors  in  fact,  iii.  370. 
Factor,  who  is  a,  vi.  558. 
kinds  of,  vi.  558. 

foreign,  vi.  558. 

home,  vi.  558. 


64S  GENERAL   INDEX. 

Factor  must  pursue  his  orders,  vi.  558. 
liable  for  neglect,  vi.  558. 
power  of,  vi.  558. 
may  sell  on  credit,  when,  vi.  561. 
cannot  delegate  his  authority,  vi.  561. 
required  to  account,  562. 
cannot  buy  debt  of  principal,  vi.  563. 
joint,  how  answerable,  vi.  563. 
lien  of,  vi.  564. 
advances  of,  vi.  564. 
pledges  by,  vi.  566. 

having  authority  to  sell,  cannot  barter,  vi.  567. 
may  sue,  when,  vi.  568. 
payment  to,  when  valid,  vi.  569. 
set-off  against,  when  valid,  vi.  571. 
must  use  due  diligence,  vi.  573. 

sale  to  one  of  the  goods  of  several  principals,  effect  of,  vi.  573. 
cannot  pledge  the  goods  of  his  principal,  iii.  493. 
when  a  witness,  iii.  493. 
Faculties,  court  of,  ii.  719. 
Fairs,  institution  of,  iv.  154.     See  Markets. 
False  pleading  makes  executor  liable,  when,  iv.  119. 
tokens,  effect  of,  iv.  381. 
pretences,  effect  of,  iv.  381. 
plea  by  heir,  consequences  of,  iv.  625. 
consequences  of,  vii.  550. 
imprisonment,  remedy  for,  ix.  462. 
Falsehood,  when  evidence  of  fraud,  iv.  384. 

required  to  constitute  perjury,  vii.  424. 
Family  agreements,  when  founded  on  mistake,  set  aside,  iv.  397. 
effect  of  a  devise  to,  vi.  148,  187. 
Bible,  when  evidence,  iii.  576,  579. 
Famosus  libellus,  what,  ix.  29. 
Farm-let,  effect  of  these  words  in  a  lease,  v.  601. 

what  passes  under  the  word,  vi.  143. 
Father,  defective  conveyance  to  a  child  by,  when  good,  i.  155. 

liable  for  child's  maintenance,  vi.  330. 
Fealty,  oath  of,  viii.  448. 
Fee-simple,  what,  iii.  421. 

what  words  pass  a,  vi.  14. 
Fees,  what,  iv.  165. 

when  due,  iv.  165,  171. 

what  due,  iv.  167. 

for  extra  services  not  recoverable,  iv.  166. 

when  recovered,  iv.  172. 

who  entitled  to,  iv.  173. 

of  coroner,  ii.  433. 

clerk  and  commissioner  of  bankrupt,  i.  814. 
when  illegal,  may  be  recovered  back  in  assumpsit,  i.  433. 
Feigned  issues,  costs  on,  ii.  532. 
Felo  de  sc,  who  is  a,  iv.  196. 

manner  of  finding  a,  iv.  198. 
punishment  of,  iv.  198. 
cannot  make  will,  vi.  10. 
Felonice,  when  required  in  an  indictment,  v.  68. 

rapuit,  when  required  in  an  indictment,  v.  68. 
Felony,  what,  iv.  173.     See  Larceny. 
effect  of  a  pardon  of,  iv.  174. 
consequences  of,  iv.  196. 

authority  of  justices  of  the  peace  in  relation  to,  v.  405. 
Feme,  who,  ii.  13.     See  Wife. 

sole  trader,  who  is  a,  ii.  65. 


rights  of,  ii.  69. 


liabilities  of,  ii.  69. 
executrix,  effect  of  marriage  of,  iv.  12. 


GENERAL  INDEX.  649 

Feme  covert  may  act  as  attorney  in  fact,  i.  520. 
execute  a  power,  -when,  ii.  75. 
be  executrix,  iv.  12. 
execute  a  grant,  when,  iv.  505. 
cannot  be  made  a  bankrupt,  i.  631. 
administer,  when,  iv.  67. 
be  guilty  of  larceny,  when,  iv.  189. 
make  a  will,  when,  vi.  6. 
rights  of,  by  the  custom  of  London,  iii.  49. 
liable  to  execution,  when,  iii.  721. 
outlawry,  when,  vii.  332. 
must  join  her  husband  to  pass  her  estate,  when,  iv.  255. 
when  bound  by  a  condition,  ii.  285. 
not  able  to  make  a  will,  x.  481. 
not  dowable  in  a  use,  x.  125. 
Fences,  when  turnpike  company  required  to  make,  vi.  440. 

consequences  of  a  defect  in,  ix.  485. 
Feoffment,  what,  iv.  199.     See  Deed. 
who  may  make  a,  iv.  220. 
Ferce  natures,  what  animals  are,  iv.  431,  432. 

trover  does  not  lie  for  animals,  ix.  650. 
when  animals,  tithable,  x.  24. 
Ferry,  grant  of  a,  when  good,  viii.  114. 
who  entitled  to  keep  a,  viii.  114. 
is  publici  juris,  viii.  115. 
Ferrymen,  liable  as  common  carriers,  ii.  154. 
Feudum  novum,  what,  iii.  428. 

antiquum,  what,  iii.  428. 
masculum  et  fceminmm,  what,  iii.  429. 
Fictitious  payee,  effect  of  a  bill  payable  to,  vi.  835. 
Fidejussors,  obligation  of,  ii.  746. 
Fidci  commissa,  what,  x.  113. 

abolished  in  Louisiana,  x.  113. 
comnussarius,  who,  x.  113. 
Fieri  facias,  is  a  judicial  writ,  iii.  698. 

what  may  be  seized  under  a,  iii.  698. 
from  what  time  a  lien,  iii.  726. 
return  to,  iii.  732. 

cannot  be  withdrawn  after  levy,  iii.  735. 
how  to  be  executed,  viii.  702. 
Fighting,  effect  of  death  by,  vii.  190,  192. 
Figures  may  be  used  in  pleading,  when,  v.  81. 
Fiium  aqua?.,  what,  viii.  23. 
Final,  award  must  be,  i.  340. 
Finder  of  goods,  when  liable  for  their  loss,  i.  619. 

guilty  of  larceny,  iv.  181,  182. 
Fines  and  amercements,  what,  iv.  225,  236. 

who  may  impose  them,  iv.  225. 
in  what  actions  they  may  be  imposed,  iv.  228. 
when  to  be  awarded,  iv.  230. 
against  whom,  iv.  234,  239. 
when  awarded  jointly  and  severally,  iv.  234. 
to  be  awarded  only  once,  iv.  235. 
must  be  reasonable,  iv.  239. 
when  mitigated,  iv.  240. 
how  recovered,  iv.  244. 
estreated,  v.  418. 
forfeitures,  king's  prerogative  in,  viii.  44. 

who  is  entitled  to,  viii.  117. 
recoveries,  what,  iv.  245. 

several  parts  of,  iv.  246. 

kinds  of,  iv.  252. 

by  whom  to  be  levied,  iv.  254. 

operation  of,  iv.  261. 

bar  a  stranger,  when,  iv.  265. 

Vol.  X.— 82  3  I 


650  GENERAL  INDEX. 

Fines  and  recoveries,  bar  an  uncertain  interest,  when,  iv.  265. 

equitable  interest,  when,  iv.  265. 
how  avoided  by  strangers,  iv.  276. 
when  erroneous,  how  reversed,  iv.  278. 
by  husband,  effect  of  on  wife's  estate,  ii.  50. 
payable  by  copyholders,  ii.  406. 
Avhen  due,  ii.  406. 
when  and  where  payable,  ii.  407. 
certainty  of,  ii.  408. 
remedy  for,  ii.  409. 
Fire,  effect  of  accidental,  viii.  523,  524  ;  ii.  595. 

insurance  against,  vi.  746. 
First  fruits,  court  of,  when  dissolved,  ii.  699. 
Fish,  right  to,  ix.  484,  485. 
when  tithable,  x.  10. 
ponds,  waste  to,  x.  428. 
Fisherman,  when  considered  a  trader,  i.  799. 
Fishery,  what,  vii.  452. 

free,  what,  vii.  452. 
several,  what,  vii.  452. 
common,  what,  vii.  452,  454. 

in  New  Jersey  the  common  right  of,  is  not  given  by  the  constitution,  vii.  454. 
common  right  of,  exists  in  Massachusetts,  vii.  454. 
ejectment  does  not  lie  for,  iii.  272. 
Fishing,  right  of,  ii.  201 ;  viii.  20. 

what  passes  by  a  grant  of,  iv.  535. 
Fixtures,  when  not  liable  to  execution,  iii.  705. 
belong  to  the  executor,  when,  iv.  82. 

put  up  by  mortgagor  are  bound  by  the  mortgage,  vii.  53,  163. 
when  it  is  waste  to  remove,  x.  431. 
trade,  what,  x.  433. 
Florida,  courts  in,  ii.  820. 
Flotsam,  what,  viii.  35. 

admiralty  jurisdiction  over,  ii.  73. 
Flowers  of  the  crown,  what,  viii.  117. 
Fcedus,  what,  viii.  63. 
Fccnus  nauticum,  what,  vi.  749. 
Foot  of  a  fine,  what,  iv.  249. 

race,  when  a  game,  iv.  461. 
Forbearance  to  sue,  a  good  consideration,  i.  423,  425. 
Force  required  in  forcible  entry  and  detainer,  what,  iv.  325. 

trespass,  ix.  438. 
Forcible  detainer  is  a  distinct  offence,  iv.  326. 
entry  and  detainer,  what,  iv.  321. 

statutes  relating  to,  iv.  321. 
what  constitutes  a,  iv.  325. 
who  may  be  guilty  of,  iv.  328. 
marriage,  offence  of,  vi.  481. 
Foreclosure,  right  of,  vii.  62.     See  Redemption. 
who  has  a  right  to,  vii.  62,  79. 
manner  of,  vii.  151. 
Foreign  judgments,  how  proved,  iii.  539.     See  Judgment. 
effect  of,  iii.  569. 
limitation  of  actions  on,  vi.  378. 
laws,  how  proved,  iii.  627. 

considered  as  a  fact,  i.  411. 
state,  what,  ii.  798. 

Cherokee  nation  is  not  a,  ii.  798. 
government,  when  it  can  sue,  i.  68. 
marriages,  when  valid,  vi.  472.     See  Marriage. 

must  be  made  according  to  the  lex  loci,  vi.  473,  474. 
which  took  place  in  Scotland,  vi.  475. 

British  settlements,  vi.  478. 
France,  vi.  480. 
Rome,  vi.  480. 


GENERAL  INDEX.  651 

Foreign  marriages,  Tjy  what  laws  to  be  tried,  vi.  472. 
factor,  who  is,  vi.  558.     See  Factor. 
sentence  of  condemnation,  effect  of,  vi.  733. 
vessels,  duties  on  goods  imported  in,  ix.  133. 
coin,  eifect  of  tender  of,  ix.  318. 
Foreigners  cannot  be  bail  in  respect  of  their  property  abroad,  i.  5G2. 
Forest,  courts  of  the,  ii.  762. 

what  is  a,  ii.  762. 
Forestalling,  -what,  iv.  335. 
Forfeiture,  what,  iv.  337. 

for  what  crimes,  iv.  338. 
of  what  estate,  iv.  338. 

goods  and  chattels,  when,  iv.  340. 
for  what  crimes  by  statute,  iv.  342. 
to  what  time,  has  relation,  iv.  346. 
lien  on  goods  by,  iv.  347. 
affects  wife's  dower,  how,  iv.  348. 
under  the  laws  of  the  United  States,  iv.  352. 
for  spiritual  offences,  how  recovered,  iv.  648. 
of  an  office,  what,  vii.  320. 

for  what  causes,  vii.  320. 
a  corporation,  ii.  482. 
by  non-user,  ii.  482. 
feudal,  what,  viii.  448. 
consequence  of  outlawry,  vii.  335. 
incurred  by  papists,  vii.  371,  374. 
of  simony,  how  incurred,  ix.  7,  22. 
by  whom,  ix.  22,  24. 
who  may  take  advantage  of,  ix.  25. 
of  copyhold,  ii.  413. 

for  non-attendance  in  court,  ii.  413. 
not  doing  service,  ii.  413. 
non-payment  of  rent,  ii.  414.     . 
by  disposition  of  it,  ii.  415. 
committing  waste,  ii.  415. 
enclosure,  ii.  417. 
for  treason  or  felony,  ii.  418. 
who  affected  by,  ii.  419. 
who  shall  be  excused  from,  ii.  421 . 
wdien  dispensed  with,  ii.  421. 
lease,  what,  v.  668. 

when  waived,  viii.  486. 
wages  by  mariner,  vi.  602. 

waived  by  master,  vi.  602. 
desertion  is  a,  vi.  609. 
cannot  be  of  a  trust,  x.  124. 
Forged  bills,  when  a  payment  made  in  them  is  invalid,  i.  412. 

effect  of  acceptance  of,  i.  413. 
Forgery,  what,  iv.  353. 

what  writing  required  to  make  it,  iv.  356. 
uttering  forged  instruments,  when  punished  as,  iv.  373. 
who  may  prove  the  forged  writing,  iii.  497. 
charge  of,  actionable,  ix.  37. 
Form  of  process  in  Courts  of  U.  S.,  ii.  822. 

and  requisites  of  commitments,  ii.  253,  254;  iii.  395. 
of  writ  of  error,  iii.  337. 

oath  administered  to  a  witness,  iii.  512. 

proving  a  will,  iv.  50. 

taking  out  administration,  iv.  50. 

record  in  cases  of  forcible  entry  and  detainer,  iv.  328. 

writs  of  habeas  cor]ms,  iv.  580. 

commission  of  the  peace,  v.  398. 

notice  to  justices,  before  action  brought,  v.  432. 

a  bond,  vii.  241. 

the  return  of  a  rescous,  viii.  589. 


052  GENERAL  INDEX. 

Formedcn,  what,  iv.  374. 

in  descender,  iv.  374. 
remainder,  iv.  376. 
reverter,  iv.  377. 
of  things,  will  lie,  iv.  377. 
demandant  in,  must  show  his  title,  iv.  377. 
plea  in,  iv.  379. 
limitations  in,  vi.  364. 
Former  estate,  how  far  restored  by  re-entry,  ii.  316. 
recovery,  plea  of,  vii.  633. 

in  penal  actions,  vii.  639. 
Fornication,  how  punished  in  ecclesiastical  courts,  viii.  57. 
Fortifications,  right  of  the  king  to  make,  viii.  63. 
Forwarding  merchant,  liability  of,  i.  623. 

not  a  common  carrier,  ii.  151. 
Fountain  of  justice,  king  is  the,  viii.  55. 
Franchise,  injunction  lies  to  restrain  acts  injurious  to,  v.  209. 

scire  facias,  to  repeal  a,  viii.  609. 
Frankalmoignc,  what,  iii.  426. 

is  tenure  by,  ix.  370. 
Frankmarriage,  what,  iii.  426. 
Fraud,  what,  iv.  381. 

vitiates  sale,  iv.  383. 
falsehood  evidence  of,  iv.  384. 
when  acts  of  servant  are,  in  the  master,  iv.  383. 
what  relieved  in  equity,  iv.  388. 
cognisable  in  what  court,  iv.  424. 
justices  liable  for,  v.  429,  430. 

when  committed  against  a  carrier,  it  excuses  him,  ii.  155. 
agreements  obtained  by,  void,  i.  158,  444. 
in  a  voluntary  assignment,  when  presumed,  i.  389. 
effect  of,  in  insurance,  vi.  691. 
will  avoid  a  patent  or  grant,  viii.  149. 
when  an  action  lies  for,  i.  111. 
chancery  has  jurisdiction  in  cases  of,  ii.  688. 
prevents  the  running  of  the  act  of  limitations,  vi.  383. 
when  will  can  be  set  aside  for,  x.  585. 
Fraudulent  conveyances  void  against  creditors  and  purchasers,  iv.  401. 
Freebench,  what  is  a,  ii.  375. 

whether  a  widow  shall  have  her,  of  a  trust,  ii.  380. 
Freeman's  estate  in  London,  what  shall  be,  iii.  40. 
"  From  the  day  of  the  date,"  meaning  of,  v.  487. 
Fruit,  when  not  tithable,  x.  7. 
Fugitives,  goods  of,  when  forfeited,  iv.  341. 
Funeral  expenses,  allowance  for,  iv.  113. 
Functus  officio,  when  a  bill  is,  vi.  797. 
Fund,  legatees  are  entitled  to  take,  when  it  is  divisible,  vi.  182. 

when  a  legacy  is  charged  on  a  particular,  vi.  297. 
Future  cohabitation,  bond  given  for,  void,  vii.  260. 

G. 

Game,  what,  iv.  431. 

Gaming,  how  restrained  at  common  law,  iv.  450. 

by  statute,  iv.  454. 
houses,  when  a  nuisance,  iv.  451  ;  vii.  223. 
Gaol,  what,  iv.  463.     See  Jail. 
Gardens,  what,  x.  428. 

Garnishee  cannot  plead  the  act  of  limitations,  vi.  406. 
who  is,  iii.  51. 

what  may  be  pleaded  by,  iii.  51. 
Gavelkind,  origin  of,  iv.  490. 

cases  relating  to  the  custom  of,  iv.  499. 
Geese,  who  entitled  to  wild,  viii.  24. 


GENERAL    INDEX.  653 

Geld,  what,  iv.  493. 

General  imparlance,  v.'liat,  vii.  520. 

special,  what,  vii.  520. 
.    issue,  how  formed,  vii.  531. 

pleas  amounting  to,  vii.  541. 
legacies,  when  entitled  to  interest,  vi.  325.     See  Interest,  Legacy. 
issue  in  trespass,  ix.  515. 

and  special  plea  in  trespass,  when  proper,  ix.  527. 
verdict,  what,  x.  308. 
Gentleman,  addition  of,  vii.  10. 
Gist  of  the  action,  what  is,  vii.  477. 
Give,  this  word  not  indispensable  in  a  will,  vi.  16. 
Giving  time  to  the  acceptor  of  a  bill,  effect  of,  vi.  815. 
Glebe  lands,  when  tithable,  x.  48. 
Good  will,  who  is  entitled  to,  vi.  580. 
and  lawful  men,  who  are,  v.  331. 
behaviour,  surety  of,  ix.  307.     See  Surety. 
Goods,  what  will  pass  by  a  bequest  of,  vi.  192. 
when  legacy  of,  is  adeemed,  vi.  208. 

the  importation  of  which  may  be  prohibited  by  proclamation,  ix.  135. 
absolutely  prohibited  to  be  imported,  ix.  130, 
subject  to  restrictions  on  importation,  ix.  137. 
Government,  no  costs  allowed  against,  ii.  524. 

how  a  legacy  to,  is  to  be  disposed  of,  vi.  189. 
Grace,  days  of,  vi.  767,  830.     See  Days  of  Grace. 

Grammar,  will,  not  always  to  be  construed  according  to  the  rules  of,  X.  540. 
Grand  jurors  must  beprobi  et  legates  homines,  v.  53. 

cannot  be  withdrawn  in  a  particular  case,  v.  53. 
must  be  regularly  summoned,  v.  53. 
jury,  what,  v.  310. 

defendant  may  challenge,  v.  312. 
challenge  to,  when  to  be  made,  v.  312. 
number  of,  v.  314. 
inquest,  what,  v.  310. 
serjeantry,  tenure  by,  ix.  375. 
Grandchildren,  who  shall  take  a  legacy  given  to,  vi.  184. 
Grange,  effect  of  grant  of,  iv.  530. 
Grant,  what,  iv.  501. 

by  whom  made,  iv.  503. 

corporations,  iv.  503.     See  Corporations. 
ecclesiastics,  iv.  503. 
infants,  iv.  505.     See  Infancy  and  Age. 
femes  covert,  iv.  505.     See  Baron  and  Feme. 
idiots,  iv.  506.     See  Idiots. 
persons  under  duress,  iv.  506.     See  Duress. 
to  whom  made,  iv.  507. 
feme  covert,  iv.  507. 
monk,  iv.  507. 

surveyors  of  highways,  iv.  508. 
construction  of,  iv.  508,  526. 
what  things  lie  in,  iv.  517. 

words  sufficient  to  create  a,  iv.  519. 
void  for  uncertainty,  when,  iv.  521. 
by  the  crown,  effect  of,  viii.  114. 
of  what,  viii.  114. 
of  a  ferry,  viii.  114. 
by  the  king,  arising  from  his  interest,  viii.  116. 
how  construed,  viii.  149. 
when  void,  viii.  149,  150,  152. 
effect  of  legislative,  viii.  150. 

possession  of,  viii.  151. 
when  qualified  by  recital,  viii.  151. 

good  in  part  and  bad  in  part,  viii.  154. 
presumptions  of  a,  viii.  156. 
when  presumed,  iii.  618,  619,  620;  viii.  94. 

3i2 


654  GENERAL   INDEX. 

Grant,  effect  of  this  word  in  a  lease,  v.  001. 

and  demise,  effect  of  these  words,  ii.  555. 
Grants  of  copyhold  lands,  who  may  make  them,  ii.  383. 

what  shall  destroy  the  power  of  copyholders  to  make,  ii.  386. 
of  what  they  may  consist,  ii.  387. 
operation  of  copyhold,  ii.  388. 
Grantee,  description  of,  iv.  508. 

mistake  in  name  of,  iv.  508,  510. 
when  two  of  same  name,  iv.  509. 
inting  of  administration,  to  whom  it  belongs,  iv.  43. 
..ntor,  description  of,  iv.  508. 

what  interest  he  may  grant,  iv.  513. 
what  interest  he  must  have,  iv.  514. 
may  assign  a  bare  right,  iv.  515. 
what  seisin  must  be  in,  iv.  516. 
Gretna  Green  marriages,  effect  of,  vi.  469. 
Gross,  common  in,  ii.  264. 
Ground  rent,  nature  of,  viii.  450. 

what  passes  by  a  bequest  of,  vi.  195. 
when  assignee  is  liable  for,  ii.  566. 
effect  of  release  of  part,  viii.  250. 
Guaranty,  when  not  negotiable,  vi.  787. 
Guardian,  who  is  a,  iv.  538. 

different  kinds  of,  iv.  538,  539. 
in  chivalry,  iv.  539. 

socage,  iv.  540. 
by  nature,  iv.  540. 
nurture,  iv.  541. 
custom,  iv.  541. 
statute,  iv.  542. 
ad  litem,  iv.  546. 
who  may  be,  iv.  547. 
for  what  removed,  iv.  548. 
by  whom  appointed,  iv.  549. 
manner  of  appointment  of,  iv.  551. 
when  authority  of,  ceases,  iv.  553. 
what  he  may  lawfully  do,  iv.  555. 
infant's  remedy  against,  iv.  559. 
bound  to  account,  iv.  561. 
charged  for  what,  iv.  562. 
when  to  be  appointed  for  an  infant,  v.  122. 
infant  may  appear  by,  v.  148. 
lease  by,  when  good,  v.  569. 
may  distrain,  iii.  165. 
Guest  entitled  to  enter  an  inn,  v.  230. 

lien  of  landlord  upon  goods  of  his,  v.  229. 
who  is  considered  a,  v.  234. 
landlord's  remedy  against  his,  v.  236. 
Gunpowder  mill,  when  a  nuisance,  vii.  230. 

H. 

Habeas  corpora,  object  of,  v.  315. 
corpus,  nature  of,  iv.  563. 
origin  of,  iv.  563. 
ad  subjiciendum,  what,  iv.  564,  567. 

faciendum  ct  recipiendum,  what,  iv.  564,  601. 

respondendum,  what,  iv.  564. 

deliberandum  el  recipiendum,  iv.  566. 

satisfaciendum,  iv.  565. 

testificandum,  iv.  565. 
what  court  may  issue  writ  of,  iv.  567. 
by  whom  it  may  be  sued  out,  iv.  570,  573. 
to  what  places  it  runs,  iv.  570. 


GENERAL  INDEX.  655 

Habeas  corpus,  in  -what  cases  granted,  iv.  571. 

not  granted,  iv.  574. 
courts  havo  discretionary  power  to  grant  or  refuse,  when,  iv.  575. 
manner  of  suing  out  writ  of,  iv.  580. 
form  of  writ  of,  iv.  580. 
by  whom  to  be  returned,  iv.  581. 
return  of,  how  compelled,  iv.  582. 
what  must  be  returned  with  writ  of,  iv.  584. 
what  return  to,  is  sufficient,  iv.  585. 
whether  a  return  to  a,  can  be  contradicted,  iv.  587. 
defects  to  a  return  to  a,  when  amendable,  iv.  588. 
prisoner,  how  treated  after  return  to  a,  iv.  589. 
jurisdiction  of  the  courts  of  the  U.  S.  in  cases  of,  ii.  824. 
when  a  supersedeas,  ix.  283. 
Habendum,  what,  iv.  214. 

effect  of,  iv.  529. 

may  enlarge  or  vary  estate  granted,  iv.  529. 
cannot  contradict  premises,  iv.  529. 
Habere •facias possessionem,  how  to  be  executed,  viii.  710. 
Half-blood,  rights  of,  iii.  107. 
Handwriting,  how  proved,  iii.  639  ;  x.  499. 

in  what,  a  will  may  be,  x.  489. 
Havens,  what,  vii.  44G ;  viii.  25. 
Hay,  when  tithable,  x.  10. 

Hazard,  what  will  take  a  contract  out  of  the  statutes  of  usury,  x.  285. 
Hceres  natus  may  redeem  mortgaged  property,  vii.  63. 
foetus  may  redeem  mortgaged  property,  vii.  63. 
Hearsay  evidence  not  admissible,  when,  iii.  629. 
exceptions,  iii.  630. 

when  part  of  res  gesta,  iii.  630. 

what  witness  testified  to  on  a  former  trial,  iii.  630. 

dying  declarations,  iii.  630. 

matters  relating  to  public  rights,  iii.  630. 

declarations  of  deceased  persons  against  their  interest, 

iii.  630. 
declarations  as  to  pedigree,  iii.  630. 

boundaries,  iii.  630. 
Heir,  who  is  an,  iv.  606.     See  Heeres  factus. 
several  kinds  of,  iv.  606. 
apparent,  iv.  606. 

general,  or  heir  at  common  law,  iv.  608. 
special,  iv.  609. 
customary,  iv.  609. 

covenants  of  ancestor,  when  for  the  benefit  of,  iv.  010 ;  ii.  265. 
when  bound  by  covenants  of  ancestor,  iv.  613. 
actions  which  may  be  had  by,  in  right  of  ancestor,  iv.  614. 
bound  for  ancestor's  debts,  when,  iv.  616. 

to  what  extent,  iv.  616. 
liable  for  his  false  pleading,  when,  iv.  625. 
when  not  liable  for  costs,  iv.  626. 

judgment  de  bonis  propri is  against,  when  proper,  iv.  626. 
liable  upon  his  promises,  when,  iv.  628. 
what  shall  be  assets  in  hands  of,  iv.  629. 

entitled  to  rent  of  descended  land,  when,  iv.  631 ;  viii.  473,  476. 
maj'  disti'ain,  when,  iii.  165. 

bring  an  appeal,  when,  i.  294. 
when  a  word  of  limitation  in  creating  an  estate  in  fee,  iii.  424. 

purchase,  iii.  426. 
when  execution  may  issue  against,  iii.  719. 
scire  facias  will  lie  for  or  against  the,  viii.  611. 
Heirs,  who  are  meant  by  the  term,  vi.  15,  18. 

what  expressions  are  equivalent  to,  vi.  15. 
in  the  singular  number,  when  equal  to,  vi.  18. 
of  his  body,  meaning  of,  vi.  32,  35. 
effect  of,  in  a  will,  x.  488. 


656  GENERAL  INDEX. 

Hereditaments,  moaning  of,  x.  126. 
Heresy,  what,  iv.  G32. 

by  whom  cognisable,  iv.  033. 
how  punished,  iv.  634 ;  viii.  57. 

teaching  school  without  conforming  to  the  church,  iv.  644. 
ia  not  coming  to  church,  iv.  645. 

what  offences  against  the  established  church  amount  to,  iv.  650. 
Heriot,  what,  iv.  655. 

when  due  by  custom,  iv.  657. 
tenure,  iv.  661. 
remedy  to  recover,  iv.  662. 
High  seas,  what,  ii.  735  ;  vii.  446  ;  viii.  19. 

sheriff,  power  of,  viii.  671.     Sec  Sheriff. 

covenants  between  under-sheriff  and,  viii.  673. 
what  acts  must  be  done  by,  viii.  675. 
treason,  what,  ix.  379,  384.     See  Treason. 
Highways,  what,  iv.  664.     See  Way. 
several  kinds  of,  iv.  664. 
street  is  a,  iv.  666. 
extent  of,  iv.  666. 
dedication  of,  iv.  667. 
where  to  be  laid  out,  iv.  668. 
cul  de  sac,  when  a,  iv.  668. 
to  whom  belongs  the  soil  of,  iv.  668. 

legislature  may  take  the  entire  interest  in  land  for  a  public,  iv.  669. 
how  changed,  iv.  669. 
effect  of  an  alteration  in,  iv.  673. 
stopping,  is  a  nuisance,  iv.  674. 
bridge  built  on,  a  nuisance,  iv.  675. 
who  are  bound  to  repair,  iv.  676. 

provisions  in  acts  of  parliament  relating  to  repairs  of,  iv.  679. 
remedies  for  not  repairing,  iv.  681. 
what  is  a  nuisance  on  a,  vii.  226. 
Hirer,  duties  of,  i.  620,  624. 
Hiring,  what  is  a,  ix.  203. 
History,  when  evidence,  iii.  578. 
Holograph  testament,  what,  x.  518 
Home  factor,  who  is,  vi.  558.     See  Factor. 
Homicide,  what,  vii.  183. 

justifiable,  what,  vii.  184,  207. 
excusable,  what,  vii.  211. 
Honey,  when  tithable,  x.  26. 
Honour,  what  passes  by  a  grant  of,  iv.  530. 
Jlors  de  son,fee,  plea  of,  vii.  617. 

when  a  proper  plea,  viii.  567. 
Horse-race,  is  a  game,  when,  iv.  461. 
Hotchpot,  what,  iv.  97. 

nature  of,  ii.  364. 

what  goods  must  be  brought  into,  iv.  97. 
profits  not  to  be  brought  into,  iv.  98. 

advancement  to  be  brought  into,  only  among  children,  iv.  99. 
by  the  custom  of  London,  iii.  43. 
House,  what  passes  by  a  grant  of,  iv.  530. 

bequest  of,  vi.  195. 
is  a  nuisance,  when  too  crowded,  vii.  228. 

filled  with  gunpowder,  vii.  229. 
inoculating,  a  nuisance,  vii.  229. 
bote  may  be  the  subject  of  a  lease,  v.  438. 
of  Commons,  its  origin,  ii.  639. 
Lords,  jurisdiction  of,  ii.  679 
a  court,  ii.  680. 

how  suits  commenced  in,  ii.  680. 
writs  of  error  from,  ii.  680. 
may  commit  and  take  bail,  i.  593. 
Representatives  may  punish  private  persons  for  contempt,  i.  473. 


GENERAL  INDEX.  657 

House,  what  is  waste  to,  x.  428. 

Household  goods,  what  passes  under  a  bequest  of,  vi.  193. 
stuff,  what  passes  under  a,  bequest  of,  vi.  194. 
furniture,  what  passes  under  a  bequest  of,  vi.  194. 
Hoynien  are  common  carriers,  ii.  151. 
Hue  and  cry,  what,  iv.  691. 

at  common  law,  iv.  691. 
derivation  of,  iv.  692. 
by  whom  to  be  levied,  iv.  692. 
how  to  be  levied,  iv.  693. 
pursued,  iv.  693. 
justified,  iv.  693. 
neglect  of,  how  punished,  iv.  695. 
under  the  statutes,  iv.  696. 
for  what  kind  of  robbery,  iv.  697.     See  Robbery. 
Hundred,  how  charged  for  a  robbery,  iv.  690. 

for  what  kind  of  robbery  liable,  iv.  697. 
when  committed  to  make  the,  liable,  iv.  698. 
what  shall  be  liable  for  robbery,  iv.  699. 
who  entitled  to  bring  action  against,  iv.  700. 
plaintiff  against,  must  give  bonds,  iv.  703. 
what  evidence  requisite  in  an  action  against  the,  iv.  700. 
how  money  is  to  be  raised  by  the,  iv.  708. 
court,  jurisdiction  of,  ii.  777. 
Hunter,  when  entitled  to  animals  he  has  wounded,  iv.  432. 
Hunting,  right  of,  ix.  483. 
Husband,  who  is  a,  ii.  13. 

power  of,  over  wife,  ii.  14. 

wife's  real  estate,  ii.  14. 

personal  estate,  ii.  15. 
choses  in  action,  ii.  21 ;  vi.  491. 
property  accruing  during  coverture,  ii.  2" 
title  by  curtesy,  iii.  16. 
rights,  viii.  275. 
may  submit  to  arbitration  in  right  of  wife,  i.  319. 

be  attorney  in  fact  to  make  livery  to  his  wife,  i.  520. 
endorse  a  note  payable  to  his  wife,  vi.  793. 
sue  alone  for  choses  of  wife,  ii.  54. 
be  a  witness,  when,  ii.  475. 
marital  rights  of,  ii.  30. 

liable  for  his  wife's  debts,  when,  ii.  33  ;  vi.  491. 
fiduciary  conduct,  ii.  34. 
necessaries,  ii.  38. 
notice  not  to  trust  wife,  effect  of,  ii.  44. 
cruelty  towards  wife,  effect  of,  ii.  44. 
what  acts  of,  bind  wife,  ii.  49. 
fines  and  recoveries  by,  effect  of,  ii.  50. 
civil  death  of,  effect  of,  ii.  64. 
partition  by,  when  to  bind  the  wife,  ii.  363. 
discontinuance  by,  effect  of,  iii.  143. 
not  liable  for  attorney's  fees,  when,  i.  504. 
death  of,  requisite  to  entitle  widow  to  dower,  iii.  210. 

jointure,  iii.  228. 
and  wife,  when  to  join  in  actions,  ii.  55  ;  vii.  409. 
not  to  join,  vii.  470. 

scire  facias  will  lie  for  or  against,  viii.  614. 
may  be  joint-tenants,  v.  242,  244. 
tenants  in  common,  v.  242. 
make  leases,  v.  443. 
Hustings,  court  of,  ii.  790 
Hypotheca,  what,  vii.  28. 
Hypothecation,  what,  vi.  625. 

by  whom  to  be  made,  vi.  625. 
owner  not  liable  on,  when,  vi.  626. 
when  to  take  place,  vi.  627. 

Vol.  X.— 83 


658  GENERAL  INDEX. 

I. 

Idiot,  who,  v.  5,  6.     See  Lunatic. 

how  he  gains  a  settlement,  v.  19. 
cannot  be  executor,  iv.  9. 
king  has  the  care  of,  viii.  65. 
Illegal  voyages,  effect  of,  vi.  703. 
Illegitimate  child,  who  is  an,  ii.  100. 
bequest  to,  vi.  156. 
Illicit^,  when  requisite  in  an  indictment,  v.  86. 
Illiterate  man,  deceit  of,  when  fraudulent,  iv.  382. 
Imagining  the  death  of  certain  personages,  when  treason,  ix.  386. 
Immaterial  and  informal  issues,  not  cured  by  verdict,  i.  249. 
issue  when  cured,  vii.  534. 

effect  of,  on  a  verdict,  x.  323. 
Immoral  agreement,  void,  i.  167,  444. 
Imparlance,  what,  vii.  519. 

nature  of,  vii.  519. 
kinds  of,  vii.  519. 

general,  vii.  520. 
special,  vii.  520. 
general  special,  vii.  520. 
what  must  be  done  before,  vii.  520. 
plea  after  general,  vii.  522. 
special,  vii.  522. 
when  granted  or  not,  vii.  523. 
roll,  when  amendable,  i.  242. 
Impeachment  of  waste,  ecclesiastical  lease  must  not  be  without,  v.  519. 
Impeachments,  how  tried,  v.  51. 

judgment  in,  v.  51. 
Implication,  devises  by,  vi.  85. 

fee  cannot  be  raised  by,  vi.  85. 
when  fee  may  be  raised  by,  vi.  88,  89. 
cross  remainders  cannot  be  created  by,  vi.  106. 
words  "  dying  without  issue,"  restrained  by,  vi.  113. 
Implied  covenants,  what,  ii.  555. 

not  to  be  inconsistent  with  express  covenants,  ii.  555. 
Importations,  how  regulated,  viii.  29. 

list  of  goods  subject  to  certain  restrictions,  ix.  137. 
Impositions,  what,  ix.  109. 
Impossible  condition,  effect  of,  ii.  294. 

what,  ii.  304. 
Impotence,  what,  ii.  83. 

divorce  for,  vi.  497. 
Impressment,  right  of,  viii.  63. 

Imprisonment  of  principal,  when  a  discharge  of  bail,  i.  568,  570. 
Improvements  of  husband's  estate,  how  estimated  in  dower,  iii.  205. 
lessee's  rights  to,  v.  660. 
made  by  mortgagee  not  allowed,  vii.  180. 
In  capite,  what  is  tenure,  ix.  368. 

cmitcmpiu  regis,  when  requisite  in  an  indictment,  v.  86. 
forma  pauperis,  who  may  sue,  vii.  420. 

defend,  vii.  421. 
in  what  cases  admitted  to  sue,  vii.  422. 
mitiori  sensu,  words  are  not  to  be  construed,  ix.  60,  61. 

in  doubtful  cases  when  to  be  so  construed,  ix.  75. 

not,  ix.  76. 
nullo  est  erratum,  effect  of  plea  of,  iii.  345,  352. 
pari  materia,  statutes,  how  construed,  ix.  243. 
perpetuam  rei  memoriam,  examination  in,  iii.  528. 
ventre  sa  mere,  rights  of  child,  v.  105. 

infant  in,  may  be  a  devisee,  vi.  9. 
legacy  to  a  child,  when  good,  vi.  170. 
Incapacities  (civil)  of  wife,  ii.  14. 


GENERAL  INDEX.  659 

Inception,  what,  x.  533. 

Incident,  what  is,  iv.  533. 

Incidental,  what  is,  to  a  statute,  ix.  220. 

Inclusive,  when  in  computation  the  first  day  is,  v.  486. 

Income,  effect  of  devise  of,  vi.  16,  30. 

Incompatibility,  when,  vii.  313,  314. 

Indebitatus  assumpsit,  when  it  lies,  i.  395,  399,  452. 

does  not  lie  on  foreign  or  domestic  judgment,  i.  399. 
for  money  lent  to  a  third  person,  i.  400. 
Indemnity  to  sheriff,  when  good,  viii.  712,  720. 

void,  viii.  712,  720. 
when  the  sheriff  may  demand,  iii.  733. 
Independent  covenants,  what,  ii.  551. 
Indictment,  when  good  at  common  law,  v.  91. 
caption  to,  v.  92. 
may  be  quashed,  when,  v.  94. 
of  treason,  ix.  420. 

when  a  new  trial  will  be  granted  in  an,  ix.  626. 
lies  for  passing  false  accounts  with  the  pay  office,  v.  60. 
when  offence  must  be  committed  to  support,  v.  62. 
must  set  forth  substance  of  charge,  v.  68. 
technical  expressions,  when  necessary  to  an,  v.  68. 
how  persons  must  be  set  forth  who  are  mentioned  in  an,  v.  73. 

things  which  are  subject  of  the  offence  must  be  set  out  in,  v.  77. 
time  and  place,  to  be  set  out  in  an,  v.  79. 
when  the  words  vi  et  armis  requisite  in,  v.  85. 

contra  pacem  requisite  in,  v.  86. 
contra  coronam  requisite  in,  v.  86. 
in  contemptu  regis  requisite  in,  v.  86. 
illicite  requisite  in,  v.  86. 
contra  formam  statuti  requisite  in,  v.  90,  91. 
when  amendable,  v.  87. 
must  recite  statute,  when,  v.  87. 
misrecital  of  statute  in,  when  fatal,  v.  88. 
offence  charged  in,  when  to  be  within  words  of  a  statute,  v.  90. 
what,  v.  48,  49. 
is  traversable,  v.  48. 

no  one  can  be  prosecuted  except  on  presentment,  or,  v.  50. 
nature  of,  v.  49. 
when  required,  v.  50. 

not  required,  v.  51. 
by  whom  to  be  found,  v.  52. 
found  a  true  bill,  v.  53. 
ignored,  v.  53. 

what  matters  are  subject  of  an,  v.  55. 
lies  for  attempt  to  commit  crime,  when,  v.  55. 
using  false  weights,  v.  55. 

marks,  when,  v.  56. 
being  drunk  while  acting  as  a  grand  juror,  v.  57. 
opposition  to  the  laws,  v.  57. 
exhibiting  obscene  picture,  v.  57. 
rapidly  driving  a  carriage,  when,  v.  57. 
cutting  down  a  tree  on  public  ground,  when,  v.  57. 
maliciously  killing  a  horse,  v.  57. 
conspiracy  to  cheat,  v.  58. 

commit  an  injury,  v.  60. 
blasphemy,  v.  58, 

abuse  of  lawful  authority,  when,  v.  58. 
challenge  to  fight,  v.  58. 
disturbing  religious  meeting,  v.  58. 
suffering  a  gaming-house,  when,  v.  58. 
renting  house  for  a  bawdj'-house,  v.  58. 
giving  two  votes,  when,  v.  58. 
malicious  mischief,  v.  58. 
oppression  by  a  magistrate,  v.  59. 


660  GENERAL  INDEX. 

Indictment  lies  for  selling  unwholesome  provisions,  v.  59. 
frequenting  houses  of  ill-fame,  v.  59. 
exposing  a  person  in  public,  when,  v.  59. 
cheating  in  exchange  of  money,  v.  GO. 
sending  a  threatening  letter,  v.  GO. 
form  of,  in  cases  of  bastardy,  ii.  106. 

forcible  entry,  iv.  329,  330. 
perjury,  vii.  429. 
under  certain  acts  of  Congress,  vii.  434. 
Indictors,  who  may  be,  v.  52. 

may  find  a  part  of  bill  true,  and  one  part  not  true,  v.  53. 
Inducement,  what  is  matter  of,  vii.  477. 

not  traversable,  vii.  579. 
Indulgence  to  debtor  will  discharge  surety,  vii.  251. 

one  of  several  debtors,  eifect  of,  viii.  277. 
Infamy  renders  a  person  incompetent  as  a  witness,  iii.  486. 

juror,  v.  347. 
Infancy  and  age,  what,  v.  97. 

when  a  good  plea  in  abatement,  i.  4. 

bar,  ii.  615. 
continuance  of,  v.  98. 
privileges  of,  v.  104. 
how  tried,  v.  106. 

cannot  be  assigned  for  error,  when,  iii.  373. 
Infant,  who  is,  v.  98. 

what  he  may  do,  v.  98. 
may  bring  an  appeal,  i.  294. 

writ  of  error,  v.  107. 
sue  an  audita  querela,  i.  510. 
be  an  attorney  in  fact,  i.  520;  v.  101,  105. 
a  witness,  when,  iii.  473. 
executor,  when,  iv.  11. 

guilty  of  forcible  entry  and  detainer,  iv.  328,  v.  115. 
make  a  grant,  iv.  505. 

contracts,  when,  v.  108,  117. 

for  necessaries,  v.  117. 
file  a  bill  to  redeem,  when,  v.  169. 
transfer  promissory  note  by  endorsement,  v.  169. 
be  outlawed,  when,  vii.  331. 
contract  marriage,  when,  v.  99. 
inherit,  v.  109. 
take  a  lease,  v.  109. 
be  lord  of  a  copyhold,  v.  110. 
bind  himself  apprentice,  v.  110. 
present  to  a  church,  v.  110. 
assign  error  coram  vobis,  v.  148. 
make  lease,  when,  v.  441. 
confirm  a  lease,  v.  442,  443. 
cannot  be  made  a  bankrupt,  i.  631. 
an  attorney,  when,  v.  108. 
naturalized  on  his  petition,  v.  169. 
is  liable  for  his  battery,  i.  372. 

on  his  contracts,  when,  i.  154,  415,  424,  427. 
to  an  execution,  when,  iii.  720. 
to  punishment  for  his  crimes,  v.  114,  116. 
for  his  torts,  v.  116. 
costs,  when,  v.  153. 
not  liable  for  necessaries,  when,  v.  121. 

as  an  innkeeper,  when,  v.  233. 
when  doll  capar,  v.  103. 
domicil  of,  v.  104. 
privileges  of,  v.  104,  114. 
capacity  of,  towards  the  public,  v.  108. 
appearance  to  an  action,  effect  of,  i.  231,  485. 
his  submission  to  arbitration,  when  voidable,  i.  314. 


GENERAL    INDEX.  661 

Infant,  when  bound  by  a  condition,  ii.  2S5; 

in  ventre  set  mere  may  be  executor,  iv.  11. 
not  bound  by  his  guardian's  acts,  when,  iv.  557. 
remedy  of,  against  guardian,  iv.  557. 
laches  of,  not  prejudicial,  v.  110. 
not  bound  by  the  act  of  limitations,  v.  111. 
entry  of,  not  taken  away  by  descent,  v.  111. 
conditional  gift  to  an,  binding,  v.  113. 
guardian,  when  to  be  appointed  for,  v.  122. 
bound  by  judicial  acts,  when,  v.  123,  147,  109. 
not  bound  by  acts  in  pea's,  v.  125. 
entitled  to  his  own  earnings,  when,  v.  120,  109. 
partition  by,  when  voidable,  v.  129. 
jointure  on,  when  a  bar  to  dower,  v.  130. 
executor  may  sue  by  attorney,  v.  151. 
when  the  parol  shall  demur  in  relation  to,  v.  154. 
father  entitled  to  the  custody  of,  v.  109. 
effect  of  payment  of  legacy  to  an,  vi.  307. 
king  has  the  care  of,  viii.  05. 
when  able  to  make  a  will,  x.  481. 
Inferior  courts  have  limited  jimsdiction,  ii.  030. 

their  jurisdiction  must  appear,  ii.  030. 
Infidel  cannot  be  a  witness,  iii.  474. 
Informal  issue,  effect  of  verdict  on,  x.  323. 
Information,  nature  of,  v.  109. 

difference  between  indictment  and  an,  v.  170. 
when  allowed  to  be  filed,  v.  171. 
allowed  on  penal  statutes,  v.  173. 
in  nature  of  a  quo  icarranto  v.  173. 
when  it  will  lie,  v.  174,  178. 
how  to  be  laid,  v.  178. 
proceedings  on,  v.  180. 
for  usurpation  of  an  office,  v.  183. 
under  the  laws  of  the  United  States,  v.  192. 
in  what  court,  lies,  v.  192. 
lies  for  what  offence,  v.  192. 
form  of,  v.  192. 

evidence  and  proceedings  under  an,  v.  193. 
when  proper,  viii.  100. 
in  what  court  to  be  made,  viii.  101. 
what  proof  required  to  sustain,  viii.  101. 
form  of,  viii.  103. 
amendment  of,  viii.  105. 
for  extortion,  form  of,  vii.  324. 
Informer,  rights  of,  v.  193. 

costs  against,  ii.  522. 
Infra  prcesidia,  effect  of  bringing  captured  property,  ii.  745. 
Initial  letter,  whether  a  name,  vii.  8. 
Injunction,  what,  v.  194. 

several  kinds  of,  v.  194. 

to  prevent  waste,  v.  197,  201,  211 ;  x.  464,  407. 
trespass,  when,  v.  198. 
printing  of  copyright  books,  v.  198,  215. 
the  publication  of  letters,  v.  199. 

the  assumption  of  the  name  of  another's  newspaper,  v.  200. 
the  dissolution  of  a  partnership,  v.  200. 
partner  from  receiving  partnership  funds,  v.  200,  214. 
a  levy  on  partnership  goods,  v.  200. 
breaches  of  covenants,  v.  201,  212. 
the  negotiation  of  a  bill,  v.  201. 
a  party  after  laches,  from  insisting  on  a  right,  v.  202. 
trial  at  law,  v.  202. 
threatened  mischief,  v.  203. 

proceedings  against  the  bail,  when  granted,  v.  206. 
counsel  from  divulging  secrets  of  his  client,  v.  208. 

3K 


662  GENERAL   INDEX. 

Injunction  to  prevent  obstructions  of  ancient  lights,  v.  209. 

the  infringement  of  a  privilege  granted  by  statute,  v.  209. 
injury  to  a  ferry,  v.  209. 
the  sale  of  slaves,  v.  209. 

proceedings  on  a  usurious  contract,  when,  v.  209. 
cutting  down  ornamental  trees,  v.  211. 
the  transfer  of  stock,  v.  213. 

executors  from  wasting  property  of  testator,  v.  213. 
the  use  of  a  recipe,  v.  214. 
perpetual,  when  to  be  granted,  v.  203. 
by  what  court  granted,  v.  210. 
lies  for  nuisance,  when,  v.  212. 
to  stay  proceedings  in  admiralty,  v.  216. 

the  Great  Sessions  of  "Wales,  v.  216. 
what  is  a  breach  of,  v.  217. 

must  be  obeyed,  though  improperly  granted,  v.  218. 
when  attorney  guilty  of  breach  of,  v.  218. 
how  dissolved,  v.  219. 
when  dissolved,  v.  220. 
for  what  causes  dissolved,  v.  220. 
against  two  defendants,  how  dissolved,  v.  222,  224. 
effects  of  acquiescence  as  to,  v.  223. 

on  lien,  v.  224. 
when  granted  for  a  nuisance,  vii.  234. 
Injuries  done  by  persons  employed  by  the  public,  how  compensated,  ii.  786. 

to  personal  property,  remedy  for,  ix.  472. 
Inland  bills  of  exchange,  vi.  767.     See  Bills  of  Exchange. 

what  is  an,  vi.  768. 
Inn,  what,  v.  226,  228,  229 ;  ix.  662. 
by  what  authority  erected,  v.  226. 
may  be  suppressed,  v.  226. 
must  be  licensed,  v.  227. 
Innkeeper,  who  is  an,  v.  228. 

cannot  as  such  be  a  bankrupt,  v.  229. 
may  request  disorderly  person  to  depart,  v.  229. 
has  a  lien  on  guest's  goods,  v.  229. 
duties  enjoined  on  innkeepers,  v.  230. 
bound  to  receive  guests,  v.  230,  232. 
answerable  for  guest's  goods,  when,  v.  230,  233. 
may  be  punished  for  selling  corrupt  commodities,  v.  231. 
how  he  is  to  be  charged  in  an  action,  v.  235. 
remedies  of,  against  his  guests,  v.  230. 
lien  of,  ix.  662. 
Innuendo,  use  of,  in  an  action  of  slander,  ix.  95. 
Inquest  of  office,  when  proper,  viii.  98. 
Inquisition,  how  to  be  taken  by  coroner,  ii.  427. 

when  to  be  traversed  or  quashed,  ii.  431. 
in  cases  of  lunacy,  effect  of,  v.  6. 

how  executed,  v.  8. 
traversed,  v.  8. 
by  whom  traversed,  v.  9. 
for  what  issued,  v.  9. 
how  superseded,  v.  10. 
when  set  aside,  v.  10. 
in  escheats,  requisites  of,  viii.  18. 
Insanity,  may  be  pleaded  in  abatement,  i.  5. 

difference  between  total  and  partial,  v.  6. 
Insensible  issue,  effect  of  a  verdict  on,  x.  326. 
Jnsimul  compulassd,  effect  of  plea  of,  vii.  589. 

Insolvent  discharged  in  another  state,  may  be  discharged  on  common  bail,  when,  i.  550. 
Inspection,  trial  upon,  ix.  552. 

Inspector  of  election,  how  punished  for  neglect,  vii.  325. 
Instalment,  when  an  action  will  lie  on,  iii.  83,  88. 

effect  of  foreclosure  for,  v.  157. 
Instance  court,  what,  ii.  734. 


GENERAL  INDEX.  663 

Insufficiency  in  defendant's  bar  not  cured  by  verdict,  i.  249. 
Insufficient  issue,  effect  of  a  verdict  on,  x.  32G. 
Insurance,  what,  vi.  G37. 

marine,  vi.  G37. 

on  ship  lost  or  not  lost,  vi.  G38. 

when  partnership  cannot  make,  vi.  G38. 

subject-matter  of,  vi.  640. 

profits,  vi.  G40. 
wages,  vi.  641. 
commissions,  vi.  641. 
privileges,  vi.  G41. 
goods  laden  on  deck,  vi.  643. 
ship,  vi.  G43. 
goods,  vi.  G43. 

tackle  and  furniture,  vi.  644. 
ship  and  furniture,  vi.  644. 
return  cargo,  vi.  644. 
interest  of  the  insured,  vi.  644. 

broker,  vi.  644. 
consignee,  vi.  645. 
equitable  owner,  vi.  645. 
part  owner,  vi.  645. 
stamps  on,  vi.  645. 
commencement  of  risk,  vi.  647. 
duration  of  risk,  vi.  647. 
loss  by  capture,  vi.  663. 
detention,  vi.  663. 
barratry,  vi.  668. 
abandonment,  vi.  680.     See  Abandonment. 
when  required,  vi.  680. 

not  required,  vi.  680. 
to  be  made,  vi.  G82. 
effect  of  fraud  or  misrepresentation  on,  vi.  691. 
concealment,  vi.  691. 
destroying  ship  on,  vi.  701. 
seaworthiness,  vi.  701. 
illegal  voyage  on,  vi.  703. 
deviation,  vi.  714. 
convoying  prizes  on,  vi.  716. 
warranty  on,  vi.  725. 

to  sail  with  convoy,  vi.  725. 
return  of  premium,  vi.  736. 
upon  lives,  vi.  743. 
against  fire,  vi.  746. 
mortgagee  cannot  charge  for,  vii.  180. 
Insurrection,  when  treason,  ix.  396.     See  Levying  War ;  Treason. 
Intent,  words  which  import  only  an,  when  actionable,  ix.  79. 
Intention  of  publication  of  words  required  in  slander,  ix.  64. 

when  evidence  of  malice,  ix.  72. 
Interdict  de  homine  libero  exhibendo,  similar  to  the  writ  of  habeas  corpus,  iv.  563. 
Interest,  rights,  an  authority  coupled  with  an,  when  not  revocable,  i.  529. 
in  the  matter  in  issue  disqualifies  a  witness,  iii.  488. 

question  does  not,  iii.  490,  495. 
a  devise  of,  passes  a  fee,  vi.  27. 
which  may  be  insured,  vi.  644. 
consignee  with  power  has  an  insurable,  vi.  645. 
of  money,  who  is  bound  to  pay, 

bankrupt  estate,  when,  i.  696. 
executor,  when,  iv.  103. 
who  is  entitled  to, 

legatee,  when,  vi.  315. 
infant,  by  way  of  maintenance,  vi.  316. 
on  what  claims, 

specific  bequest,  when.  vi.  296. 
mortgage,  vi.  45,  179. 


6C4  GENERAL  INDEX. 

Interest,  of  money,  commencement  of, 

on  legacy,  vi.  320,  328. 
specific  legacy,  vi.  32G. 
general  legacy,  vi.  32G,  327. 
upon  a  legacy  when  to  be  refunded,  vi.  302. 
can  be  apportioned,  when,  vi.  312. 
rate  of,  on  legacies,  vi.  321. 
when  interest  shall  bear,  vii.  172. 

may  be  recovered  beyond  the  penalty  of  a  bond,  vii.  239,  240. 
Interlineation  in  writing,  effect  of,  iii.  601. 
Interlocutory  proceedings,  costs  on,  ii.  534. 
Interpreter  cannot  be  a  witness,  when,  iii.  482. 
Interrogatories,  examination  upon,  iii.  518. 
Interruption,  what,  iii.  138. 
Intestate,  who  is,  x.  480. 

Intoxication,  justice  punished  for  acting  while  in  a  state  of,  v.  429. 
Invention,  who  is  entitled  to,  viii.  131. 
Inventory,  when  to  be  furnished,  iv.  55. 
what  must  bo  put  in,  iv.  57. 
Iowa,  courts  in,  ii.  821. 
Irregularity  in  proceedings  no  defence  for  an  escape,  iii.  392. 

giving  bail,  may  be  amended,  when,  i.  5G5. 
Issue,  pleading,  what,  vii.  531. 

elements  of,  vii.  532. 

how  to  be  formed,  vii.  532. 

immaterial,  when  aided,  vii.  357  ;  i.  249. 

not,  vii.  357;  i.  249. 
pleas  amounting  to  general,  vii.  541. 
in  law  and  in  fact,  how  tried,  vii.  6G2. 
when  there  are  several,  how  tried,  ix.  580. 
in  ejectment,  form  of,  iii.  291. 
descents,  meaning  of,  in  wills,  vi.  147,  149,  179. 
male,  vi.  148. 
in  tail,  how  barred,  iv.  2G1. 
required  to  create  an  estate  by  curtesy,  iii.  1G. 
Itch,  it  is  slander  to  charge  one  with  having  the,  ix.  29. 
Iter,  what,  iv.  GG5. 

J. 

Jail,  what,  iv.  463,  4G9.     See  Prison. 

for  the  use  of  the  United  States,  iv.  4G4. 
by  whom  to  be  repaired,  iv.  464. 
where  to  be  kept,  iv.  469. 
duty  of  keeper  of,  iv.  470. 
breaking,  what,  iv.  487. 
jurisdiction  of  sheriff  over,  viii.  680. 
liability  of  sheriff,  though  there  is  no,  viii.  681. 
what  place  may  be  a,  viii.  681. 
insufficiency  no  excuse  to  sheriff,  viii.  682. 
Jailor,  duty  of,  iv.  470. 

liability  of,  iv.  470. 

responsible  for  acts  of  his  deputy,  iv.  470. 
sheriff  is  ex  officio,  iv.  470. 
de  facto,  when  liable,  iv.  471. 
liable  to  attachment,  when,  iv.  471. 
salary  of,  iv.  471. 
office  of,  when  forfeited,  iv.  474. 
may  be  attached,  when,  i.  463. 
Jeofails,  statutes  of,  i.  223. 
Jettison,  when  justified,  ii.  154. 
Jetsam,  what,  viii.  35. 

whim  justified,  ii.  154. 

admiralty  jurisdiction  over,  ii.  73G. 


GENERAL  INDEX.  GG5 

Jewels,  what  passes  by  a  bequest  of,  vi.  196. 
Jews,  validity  of  marriages  of,  vi.  469.^ 

Joinder  of  parties,  when  proper,  vii.  407.     See  Parlies  to  Actions. 
counts,  when  proper,  vii.  472.     See  Declaration. 
actions,  when  right  and  when  not,  iv.  127,  133. 
several  things  in  same  action,  when  proper,  i.  G9. 
Joint  and  several  obligations,  what,  vii.  249. 

effect  of,  vii.  250  to  25G  ;  vi.  835. 
declaration  on,  vii.  253. 
judgment  on,  vii.  254. 
effect  of  tearing  off  a  seal  of  a,  vii.  256. 
defendants  may  sever  in  their  defence,  when,  i.  461. 
offence  may  be  laid  in  same  indictment,  when,  v.  83. 
defendants  in  an  indictment,  how  tried,  v.  84. 
traders,  who  are,  vi.  573.     See  Partners. 
obligees,  who  are,  vii.  248. 
obligors,  who  are,  and  how  liable,  vii.  249. 
effect  of  appointing  one  as  executor  by  the  other,  vii.  254. 
owners,  must  join  in  replevin,  viii.  552. 
promissors,  effect  of  a  release  to  one  of  several,  vi.  815. 
Joint-tenancy,  limited  in  the  U.  S.,  v.  240. 

what  things  may  be  held  in,  v.  245. 
how  created,  v.  246,  251. 

difference  between  tenancy  in  common  and,  v.  250. 
duration  of,  v.  266. 
severance  of,  v.  279. 
effect  of  survivorship  in,  v.  279. 
severed  by  partition,  v.  283. 

devise  of  one  joint-tenant's  share  does  not  sever  the,  v.  285. 
when  one  joint-tenant's  share  must  be  disposed  of  to  destroy  the,  v.  285. 
mortgage  by  two  of  three  joint-tenants,  destroys  the,  v.  288. 
dower  in,  iii.  202. 
Joint-tenants,  who  are,  v.  239. 

may  be,  v.  241. 
bodies  politic  cannot  be,  v.  241. 
disseisors  may  be,  v.  242. 
husband  and  wife  cannot  be,  v.  242. 

may  be,  v.  242,  244. 
in  what  acts  must  join,  v.  267. 
joint  and  distinct  interests  of,  v.  267. 
effect  of  deed  of  one,  v.  268. 
may  join  or  sever  in  making  leases,  v.  274. 
one  cannot  alone  erect  buildings,  v.  275. 
must  unite  to  enforce  specific  performance,  v.  275. 
acts  of  one  of  several,  when  advantageous  to  both,  v.  275. 

binding  on  both,  v.  277. 
how  far  charges  by  one  shall  affect  the  other,  v.  288. 
must  be  joined  as  plaintiffs  or  defendants,  v.  299. 
remedies  of,  against  each  other,  v.  304. 
may  distrain,  when,  iii.  165. 

one  may  be  guilty  of  forcible  entry  and  detainer,  iv.  328 
cannot  devise  his  interest,  vi.  9.. 
Jointure,  what,  iii.  190  ;  v.  131. 
origin  of,  iii.  227. 

when  estate  must  take  effect,  iii.  228. 
term  of,  iii.  229. 
must  be  to  wife  herself,  iii.  229. 

in  satisfaction  of  dower,  iii.  230. 
made  during  coverture,  iii.  232. 
how  defeated,  iii.  234. 
on  an  infant,  when  a  bar  to  dower,  v.  130. 
Journals  of  Congress,  how  proved,  iii.  554. 
Journeys  accompt,  i.  40. 

Judges,  whence  they  derive  jurisdiction,  ii.  619. 
their  duty,  'ii.  620. 

Vol.  X.— 84  3  k  2 


666  GENERAL  INDEX. 

Judges,  how  protected,  ii.  G20. 
censured,  ii.  G21. 
not  to  sit  in  their  own  cause,  ii.  621. 
when  they  may  be  challenged,  ii.  621. 

may  sit  where  they  have  been  counsel  for  one  of  the  parties,  ii.  C21. 
dejure,  how  far  their  acts  are  valid,  ii.  621. 
cannot  be  required  to  give  an  opinion,  when,  ii.  621. 
tenure  of  their  office,  ii.  622. 

of  inferior,  when  they  may  decide  in  superior  jurisdictions,  ii.  623. 
not  elegible  to  parliament,  ii.  661,  662. 
equality  among,  ii.  715. 

certificate  of,  when  requisite  to  entitle  a  party  to  costs,  ii.  487. 
when  suit  cannot  be  sustained  against,  iii.  60. 
can  be  a  witness,  when,  iii.  479. 
no  one  can  be,  in  his  own  case,  v.  416 ;  ix.  218. 
to  decide  according  to  his  own  judgment,  vi.  437. 
cannot  act  as  a  deputy,  vii.  317. 

be  challenged  for  corruption,  vii.  323. 
liability  of,  vii.  325. 
what  is  slander  against  a,  ix.  46. 
Judgment,  kinds  of. 

quod  computet,  i.  53. 
quod  partitio  fiat,  v.  292. 

facta  firma,  &c,  v.  292. 
on  demurrer,  what,  vii.  665.     See  Demurrer. 
when  quod  recuperet,  vii.  666. 

quod  respondeat  ouster,  vii.  666. 
severance,  when  to  be,  ix.  267. 

in  what  actions,  ix.  270. 
effect  of,  ix.  272. 
consequences  of,  ix.  273. 
on  qui  tarn  actions,  i.  97. 

a  plea  in  abatement,  i.  38. 
in  bastardy  cases,  ii.  106. 
detinue,  iii.  137. 
ejectment,  iii.  292. 
error,  iii.  383. 

affirmed  in  part,  and  reversed  in  part,  iii.  383. 
when  not  divisible,  iii.  383. 
on  reversal  of  the  first,  iii.  386. 
replevin,  viii.  575. 

when  to  be  j)ro  retomo  kabendo,  viii.  579. 
treason,  ix.  433. 
trover,  ix.  681. 
waste,  form  of,  x.  461. 
quando  acciderunt  cannot  be  given  against  heirs,  iv.  627. 
on  scire  facias,  viii.  625,  627. 
effect  of, 

final,  in  actions  of  accompt,  i.  54. 

when  confessed  by  the  husband  against  himsolf  and  wife,  ii.  51. 

against  several  joint  contractors,  iv.  151. 
in  outlawry,  iv.  335. 
when  against  one  of  several  debtors,  viii.  276,  278. 

it  may  be  amended,  i.  251. 
on  which  error  lies,  iii.  325. 

execution  may  issue,  iii.  669. 
when  to  be  paid  by  executor,  iv.  106. 
presumption  of  payment  of,  vi.  370. 
'■roditor  may  redeem  against  a  mortgagee,  vii.  82,  83. 
when  it  may  be  set  off,  viii.  648. 
costs  in  actions  upon,  ii.  533. 
Judicial  acts,  when  binding;  on  infants,  v.  123. 
how  to  be  performed,  v.  410. 
proceeding,  to  constitute  perjury,  oath  must  at  common  law  be  under  some, 

vii.  425. 
writs,  what,  ii.  684. 


GENERAL   INDEX.  66" 

Judiciary  of  the  United  States,  power  of,  viii.  5C. 
Junior,  no  part  of  a  man's  name,  vii.  8. 

effect  of  leaving  out  of  a  name,  iii.  330. 
Jurisdiction  of  courts,  how  derived,  ii.  017,  018. 

not  from  consent  of  parties,  ii.  018. 
how  determined,  ii.  022. 
when  not  taken  away,  ii.  025. 
never  waived,  ii.  030, 
chancery,  limited,  ii.  083. 
modern,  ii.  087. 
King's  Bench,  ii.  089. 
Common  Pleas,  ii.  097. 
Exchequer,  ii.  099. 
constable's  court,  ii.  707. 
justices  of  assize,  ii.  711. 
ecclesiastical  courts,  ii.  724,  727,  732 ;  ix.  20. 
admiralty,  ii.  735. 

over  what  place,  ii.  735. 
tilings,  ii.  730. 
sheriff's  torn,  ii.  770. 
coroner,  over  what  places,  ii.  420. 

judicial  and  ministerial,  ii.  428. 
over  what  offences,  ii.  429. 
costs  in  case  when  dismissed  for  want  of,  ii.  525,  529. 
pleas  to  the,  vii.  520. 

manner  and  time  of  pleading  to  the,  vii.  529. 
liability  for  excess  of,  ix.  404,  400. 
of  justice  of  the  peace,  v.  404. 
Jurors,  qualifications  of,  v.  311,  320,  340,  342. 
lined  for  non-attendance,  v.  310. 
how  summoned,  v.  323. 
number  to  be  returned,  v.  330. 
panel  of,  to  be  returned,  v.  334. 
who  are  to  be  returned  as,  v.  342,  351. 
may  be  challenged,  when,  v.  312,  343.     See  Challenge. 
how  to  be  empannelled  and  sworn,  v.  307. 
how  to  be  kept  and  discharged,  v.  309. 
when  and  how  to  be  paid,  v.  382. 

punishable  by  attaint,  v.  383. 
not  allowed  to  impeach  their  verdict,  v.  393. 
cannot  be  witnesses,  when,  iii.  479. 
who  privileged  from  serving  as,  viii.  159,  100. 

when  a  defect  in  the,  will  authorize  the  granting  a  new  trial,  ix.  597. 
effect  of  misbehaviour  of,  x.  317. 
Jury,  what,  v.  308. 

origin  of  trial  by,  v.  309. 

several  kinds  of,  v.  310. 

grand,  v.  310. 

petit,  v.  310. 

list,  how  to  be  made,  v.  320,  321. 

process,  v.  314,  315. 

several  kinds  of,  v.  310. 
by  whom  to  be  executed,  v.  318. 
when  returnable,  v.  327. 
amendable,  i.  243. 
must  appear,  when,  v.  328. 
special,  how  appointed,  v.  337. 
how  to  be  polled,  v.  371. 
trial  by,  ix.  504. 

effect  of  drawing  lot  to  make  a  verdict,  ix.  588,  013. 
mistake  of,  a  ground  for  a  new  trial,  ix.  590. 
effect  of  separation  of,  ix.  014 ;  x.  317. 
misbehaviour  of,  x.  317,  318. 
power  of,  over  verdict,  x.  315. 
Juts  accrescendi,  what,  v.  279. 


M8  GENERAL   INDEX. 

Jus  accrescendi,  does  not  take  place,  when,  vi,  579. 
privatum,  what,  viii.  27. 
regium,  what,  viii.  27. 
publicum,  what,  viii.  27. 
Justice  seat,  what,  ii.  763. 
Justices  of  the  peace,  who  are,  v.  393. 

how  appointed,  v.  393,  398. 
their  duties,  v,  393. 
are  conservators  of  the  peace,  v.  394. 
first  institution  of,  v.  395. 
powers  of,  v.  395,  396. 
commission  of,  v.  398. 
qualification  of,  v.  401,  406. 
authority  of,  v.  404  ;  ii.  715. 

in  relation  to  treason,  v.  404. 
felonies,  v.  405. 
inferior  offences,  v.  406. 
jurisdiction  of,  how  exercised,  v.  409. 
cannot  be  agent  for  a  party,  v.  410. 

execute  his  office  in  his  own  case,  v.  416. 
may  supersede  his  own  orders,  v.  417. 
jurisdiction  of,  in  pauper  cases,  v.  417. 
protection  of,  from  suits,  v.  425. 
liability  of,  v.  426. 
notice  of  suit  to  be  given  to,  v.  427. 
bound  to  assist  in  suppressing  a  riot,  v.  430. 
punished  for  fraud,  when,  v.  429,  430. 
neglect,  when,  v.  430. 
being  intoxicated,  when,  v.  429. 
information  against,  refused,  v.  431. 
form  of  notice  of  action  against,  v.  432. 
effect  of  tendering  amends  by  a,  ix.  357. 
liable  to  damages,  when  he  exceeds  his  jurisdiction,  ix.  464. 
effect  of  a  parol  warrant  of,  ix.  470. 
may  bail  in  criminal  cases,  i.  584. 
cannot  bail  in  capital  cases,  i,  585. 
Justices  of  jail-delivery  may  bail,  i.  587. 

assize  and  nisi  prim  established,  ii.  713. 
Justiciar,  who  was,  ii.  617. 
•Justifiable  homicide,  what,  vii.  184,  207. 

execution,  vii.  207. 
in  making  a  lawful  arrest,  vii.  209. 

by  judgment  of  a  court  of  competent  jurisdiction,  vii.  209. 
occasioned  in  trial  by  battle,  vii.  208. 
by  self-defence,  vii.  210. 
waste,  what,  x.  435. 
Justiiicntion,  plea  of,  vii.  040;  vi.  352. 

requisites  of,  ix.  99. 


of  a  battery,  what,  i 


6io. 


bail,  how  made,  i.  559. 

before  whom,  i.  563. 
a  libel,  requisites  of,  vi.  350. 
trespass,  plea  of,  ix.  527. 
words,  plea  of,  ix.  97. 

K. 

Key,  effect  of  acceptance  of  the,  by  the  landlord,  v.  659. 
Kindred  may  lrfaintain  each  other,  how  far,  vi.  413. 
King,  prerogative  and  rights  of,  viii.  6. 

not  on-'  of  tin;  three  estates  of  the  realm,  viii.  7. 

commencement  of  the  reign  of  the,  viii.  10. 

never  dies,  viii.  10. 

who  is  heir  to  the,  viii.  10. 

de  facto,  who,  viii.  11. 


GENERAL  INDEX.  669 

King,  dejurc,  who,  viii.  11. 
oath  of,  viii.  11. 

is  the  universal  occupant,  viii.  13. 
derelict  lands  belong  to  the,  viii.  13. 
right  to  escheats,  viii.  15. 

prerogative  of,  in  seas  and  navigable  rivers,  viii.  18. 
swans  and  royal  fish,  viii.  24. 
ports  and  havens,  viii.  25. 
beacons  and  lighthouses,  viii.  33. 
wrecks,  viii.  34. 
coins,  viii.  37. 
mines,  viii.  37. 
lunatics,  v.  11. 
derelict  goods,  viii.  41. 
fines  and  forfeitures,  viii.  44. 
over  the  persons  of  his  subjects,  viii.  45. 
as  the  fountain  of  justice,  viii.  55. 
in  ecclesiastical  matters,  viii.  56. 
creating  offices,  viii.  56. 
making  war  and  peace,  viii.  56. 
as  parens  patriae,  viii.  65. 
in  granting  dispensations,  viii.  66. 
pardons,  viii.  66. 
issuing  proclamations,  viii.  79. 
of  what  incapable,  viii.  81. 
can  do  no  wrong,  viii.  81.  ^ 
cannot  arrest  in  person,  viii.  82. 
be  seised  to  a  use,  viii.  82. 
tenant,  viii.  82, 
may  be  executor,  viii.  83. 
has  two  capacities,  viii.  83. 
is  a  sole  corporation,  viii.  83. 
may  reserve  rent,  viii.  84. 

pass  a  chose  in  action  under  the  signal  manual,  viii.  85. 
re-entry  by,  how  made,  viii.  89.  ^ 
rights  preferred  to  a  subject's,  viii.  91. 
acts  of  parliament  which  extend  to  the,  viii.  92. 
not  bound  by  act  of  limitations,  viii.  94. 
laches  cannot  be  imparted  to  the,  viii.  95. 
suits  by,  prerogative  in,  viii.  98._ 
authorized  to  grant  pensions,  viii.  121. 

sell  or  devise,  viii.  127. 
duties  levied  by,  viii.  129. 
what  property  may  be  granted  by  the,  viii.  130. 
may  be  executor,  iv.  7. 
's  silver,  what,  iv.  248. 

jurisdiction  in  granting  letters  of  administration,  iv.  45. 
precedency  to  executors,  iii.  730. 
cannot  be  a  joint-tenant,  v.  241. 
challenges  b'v,  when  allowed,  v.  364. 

may  take  advantage  of  forfeitures  in  cases  of  simony,  when,  ix.  25. 
's  demise  may  be  pleaded  in  abatement,  i.  11. 
Bench,  jurisdiction  of,  vi.  438. 

may  take  bail,  when,  i.  588. 
Knight's  service,  tenures  by,  abolished,  viii.  450. 


Labourer  is  a  good  addition,  vii.  11. 

Lace,  duties  on,  ix.  134. 

Laches  of  infants  not  prejudicial  to  them,  v.  110. 

cannot  be  imputed  to  the  kinsr,  viii.  95. 
Lancaster,  county  palatinate  of,  ii.  760. 
Land,  when  to  be  considered  as  money,  i.  168 ;  iv.  610. 
remedies  for  injuries  to,  ix.  480. 


670  GENERAL  INDEX. 

Land  cheap,  what,  iii.  30. 

what  is  waste  to,  x.  423. 
Landing  of  goods,  what  is  a  sufficient,  vi.  647. 

when  a  grant  will  be  presumed  from  the  use  of  a,  vii.  454. 
Lands  and  tenements,  what  passes  by  grant  of,  iv.  530. 
Landlord,  when  entitled  to  claim  rent  from  sheriff,  viii.  510,  511. 
Language,  formerly  pleadings  were  in  the  Latin,  vii.  458. 
now  in  English,  vii.  458. 
slander  may  be  in  a  foreign,  is.  62 
in  what,  a  will  may  be  written,  x.  489. 
Languidus,  return  of,  viii.  714. 

Lapse  of  time,  effect  of  twenty  years'  possession,  vii.  148. 

ten  years'  possession,  vii.  148. 
on  debt,  vii.  275. 
when  no,  will  affect  a  mortgage,  vii.  148. 
Lapsed  legacy,  what,  vi.  236.     See  Legacy. 

when  legatee  dies  in  lifetime  of  testator,  vi.  236. 
when  payable  at  a  future  time  to  which  legatee  did  not  arrive,  vi.  244. 
Larceny,  nature  of  things  taken,  iv.  174. 

taking  away  charters  not,  iv.  175. 

animals  ferce  naturce,  when,  iv.  176. 
ore,  when,  iv.  176. 
trees,  &c,  when,  iv.  176. 
wool  from  sheep,  iv.  177. 
dog,  not,  iv.  178. 
bees,  when,  iv.  178. 
slave,  when,  iv.  178. 
young  of  animals,  when,  iv.  178,  179. 
property  in  foreign  country,  iv.  179. 
another  country,  iv.  179. 
bailee,  when  guilty  of,  iv.  180,  181,  182. 
of  goods  of  unknown  owner,  iv.  181. 
what  carrying  away  constitutes,  iv.  187. 
by  whom  it  may  be  committed,  iv.  188. 
difference  between  grand  and  petit,  iv.  190. 
punishment  of,  iv.  193. 
appeal  of,  what,  i.  291. 
Law  of  nations,  how  it  may  be  varied,  ii.  749. 
errors  in,  what,  iii.  370. 
books,  license  for  printing,  viii.  141. 

may  be  the  subject  of  a  copyright,  viii.  149. 
of  this  country,  when  binding  upon  aliens,  i.  208. 
foreign,  when  considered  as  facts,  i.  411. 
of  sister  state,  how  proved,  iii.  533. 
foreign  countries,  how  proved,  iii.  534. 
Oleron,  what,  ii.  744. 
Rhodes,  what,  ii.  744. 
League,  what,  viii.  63. 

kinds  of,  viii.  62. 

difference  between  a  truce  and  a,  viii.  63. 
Lease,  what,  v.  433. 

what  is  an  assignment  of  a,  v.  433. 
under,  what,  v.  433. 

for  years,  of  what  it  may  be  made,  v.  437. 
of  corody,  v.  437- 
house-bote,  v.  437. 
offices,  v.  439. 
who  may  make  a,  v.  441. 
infant  may  make  a,  when,  v.  441,  442. 
confirmation  of,  by  infant,  v.  442,  443. 
of  king  within  age,  when  good,  v.  443. 
by  husband  and  wife,  v.  443. 

at  common  law,  v.  443.  '••'.* 

pursuant  to  statute,  v.  448. 
by  tenant  in  tail  v.  448. 


GENERAL  INDEX.  671 

Lease,  by  tenant  in  tail,  at  common  law,  v.  448. 

since  statute  of  32  H.  8,  v.  459. 
when  binding  on  issue  in  tail,  v.  402. 
stranger,  v.  402. 
ecclesiastical  persons,  v.  409. 

how  restrained,  v.  4G0. 
rules  respecting,  v.  481. 
must  be  by  deed,  when,  v.  481. 

begin,  when,  v.  485. 
date  of,  v.  485,  013. 
effect  of  delivery  of,  v.  480,  488. 
when  to  be  surrendered,  v.  492. 
concurrent,  what,  v.  492. 
not  to  exceed  three  lives,  v.  500. 
when  it  binds  survivors,  v.  501. 
construction  of,  under  the  stat.  32  II.  8,  v.  505. 
what  rent  to  be  reserved  in,  v.  509. 
how  avoided,  v.  514. 

ecclesiastical,  to  be  made,  v.  519. 
by  parsons,  &c,  v.  520. 
confirmation  of,  v.  530. 

who  may  confirm,  v.  532.     See  Confirmation. 
void  or  voidable,  v.  549.     See  Void. 

how  made  good,  v.  555. 
avoided,  v.  555. 
those  who  have  but  a  particular  estate,  v.  550. 
tenant  by  curtesy,  v.  550. 

for  life,  v.  557. 
lessee  fur  years,  v.  558. 
derivative,  what.  v.  558. 
by  disseisor  or  disseisee,  v.  559. 
joint-tenants,  v.  501. 
tenants  in  common,  v.  501. 
copyholder,  v.  503. 
executors  and  administrators,  v.  567. 
bailiff  of  a  manor,  v.  568. 
guardians,  v.  569. 
attorney,  v.  571. 

authority  of  a  board  of  trustees,  v.  574. 
governor  of  a  state,  v.  575. 
made  pursuant  to  powers,  v.  575. 
by  what  words  made,  v.  601. 

difference  between  agreement  for  a  lease  and  a,  v.  601,  608. 
how  construed,  v.  601. 
from  year  to  year,  what,  v.  612,  613. 
beginning  of,  v.  613,  614,  619 ;  iii.  23. 
continuance  of,  v.  621. 
at  will,  v.  622,  623. 
by  estoppel,  v.  636. 
for  years,  of  future  interests,  v.  642. 

to  attend  inheritance,  how  barred,  v.  644. 
when  merged  by  union  of  freehold,  v.  648. 
surrender  of,  v.  657.     See  Surrender. 
determined  by  cancelling  the  deed,  v.  666. 
when  forfeited,  v.  668. 
renewal  of,  v.  676,  706,  707. 
effect  of  covenant  for  renewal  of,  v.  684,  707. 
by  ecclesiastical  society,  when  determined,  v.  707. 
effect  of  parol,  v.  708. 
contract  for  renewal  of,  ii.  580,  581. 
covenant  to  assign,  when  broken,  ii.  596. 
when  to  commence  and  end,  iii.  23. 
concerning  tithes,  x.  72. 
Leasehold  estate,  when  it  passes  to  assignees  of  bankrupt,  i.  728. 
Leather,  duties  on,  ix.  117. 


672  GENERAL  INDEX. 

Lodger-book,  when  evidence,  iii.  571. 
Leet,  court,  ii.  774. 

Legacy,  subject  relating  to,  how  divided,  vi.  ICO. 
defined,  vi.  161. 
by  what  words  given,  vi.  164 
what  is  a  sufficient  description  of  the  person  to  take,  vi.  170. 

thing  given,  vi.  190. 
to  children  begotten  or  to  be  begotten,  vi.  182. 

child  in  ventre  sa  mere,  vi.  182. 

children  living  when  fund  is  distributable,  vi.  182. 

younger  children,  vi.  183. 

heirs,  vi.  184. 

servants,  vi.  186. 

relations,  vi.  187. 

poor  relations,  vi.  187. 

next  of  kin,  vi.  188. 

cousins,  vi.  188. 

government,  vi.  189. 

a  slave,  vi.  189. 

Roman  Catholic  priest,  vi.  190. 

wife,  vi.  190. 
for  life,  with  remainder  over,  what,  vi.  198. 
adeemed,  what,  vi.  198. 
duplicate,  what,  vi.  205. 
substituted,  what,  vi.  200. 
additional,  what,  vi.  206. 
when  a  satisfaction,  vi.  210. 
of  policy  of  insurance,  when  adeemed,  vi.  207. 
when  lapsed,  vi.  236. 
when  limited  over,  vi.  236. 
is  a  debt  in  prcescnti  payable  in  futuro,  vi.  244. 
when  a  gift  though  time  of  payment  is  postponed,  vi.  263. 
good  when  gift  and  time  of  payment  are  united,  vi.  264. 
bow  construed,  when  limited  over,  vi.  266. 
when  subject  to  a  power  of  appointment,  vi.  268. 
when  given  to  survivors,  vi.  268. 
when  payable  out  of  land,  vi.  269. 
effect  of  conditional  legacies,  vi.  270. 
specific,  what,  vi.  290. 
pecuniary,  what,  vi.  290. 

difference  between  specific  and  pecuniary,  vi.  292. 
money,  when  not  specific,  vi.  294. 
of  all  money  in  a  drawer,  is  specific,  vi.  297. 
charged  on  a  particular  fund,  effect  of,  vi.  297. 
accumulative,  what,  vi.  298. 
substitutional,  what,  vi.  298. 
of  abating  of,  vi.  298. 
refunding  of,  vi.  298. 
of  piety  not  to  abate,  vi.  299. 
for  pains  and  trouble  abates,  vi.  299. 
to  wife,  in  lieu  of  dower,  does  not  abate,  vi.  300. 
must  be  refunded,  when,  vi.  300. 
payment  of,  vi.  305. 
presumptive  payment  of,  vi.  306. 
retainer  of,  vi.  306. 
interest  on,  when  payable,  vi.  315. 
executor's  assent  required,  vi.  331.     See  Assent. 
in  what  court  recoverable,  vi.  334. 
when  assumpsit  lies  for  a,  vi.  335. 
act  of  limitations  run  against,  when,  vi.  380. 
when  assumpsit  lies  on  a  pecuniary,  i.  425. 
to  -wife,  to  whom  to  be  paid,  ii.  70. 

the  poor,  how  distributed,  ii.  198. 
when  to  be  paid,  iv.  112. 
Legal  personal  representatives,  a  bequest  to,  vi.  188. 


GENERAL   INDEX.  673 

Le^al  effect,  instruments  and  records  must  be  statod  in  a  declaration  according  to  their, 

vii.  496. 
Legatee,  -when  sufficiently  described,  vi.  170. 
effect  of  death  of,  vi.  236. 
cannot  charge  his  legacy,  when,  vi.  289. 
of  personal  property  for  life,  when  to  give  security,  viii.  302. 
Legatory,  what,  iii.  47. 
Legislative  grant,  effect  of.  viii.  131. 
Legitimacy,  what,  ii.  78. 

presumption  of,  ii.  82. 
Legitimate,  gift  to  children  are  presumed  to  be  to  those  who  are,  vi.  156. 
Lender,  rights  of,  i.  624. 
Lessee,  rights  of,  v.  437,  708. 

when  not  bound  to  pay  rent,  v.  708. 
bound  to  allow  repair,  v.  708. 
Letter-carrier,  when  liable,  ii.  152. 

how  appointed  and  his  duties,  ii.  161. 
of  attorney,  how  executed,  iv.  221. 

joint  and  several,  how  executed,  iv.  223. 
effect  of  sending  libellous,  to  the  person  libelled,  vi.  358. 
Letters  of  administration,  how  proved,  iii.  571. 

testamentary  or  of  administration,  effect  of,  iv.  71. 
effect  of,  generally,  iv.  71. 
out  of  the  jurisdiction,  when  granted,  iv.  71. 
injunction  lies  to  restrain  the  publication  of  private,  v.  199. 
of  marque,  king  may  grant,  viii.  63. 
patent,  scire  facias  to  repeal,  viii.  608. 
Letting  to  farm,  what,  v.  505. 
Levant  et  couchant,  when  to  be  proved,  viii.  563. 
Levari  facias  is  a  judicial  writ,  iii.  698. 

how  to  be  executed,  viii.  702. 
Levitical  degrees,  what,  vi.  457,  458,  459. 
Levy,  what  is  a,  iii.  734. 

when  to  be  made,  iii.  734. 

on  chattels  held  in  common  on  a  judgment  against  one  of  the  tenants  in  com- 
mon, how  made,  v.  304. 
Levying  war,  when  treason,  ix.  380,  394. 
what,  ix.  394. 

when  excusable,  ix.  395,  400. 
Lex  loci,  of  what  force  against  aliens,  i.  208. 

rules  in  the  construction  of  contracts  by  the,  i.  547. 
when  to  govern,  vi.  406 ;  x.  534. 
Liability  of  husband  for  wife's  debts,  ii.  33. 

civiliUr  for  wife,  ii.  37,  38. 
for  necessaries  furnished  to  wife,  ii.  38. 
members  of  corporations,  ii.  458. 
administrator  de  bonis  non,  iv.  24. 
drawer,  vi.  785. 
acceptor,  vi.  785. 
endorser,  vi.  785. 
joint-drawers,  vi.  785. 
officer,  vii.  325. 
trustees,  what,  x.  247,  253. 

for  neglect  in  calling  in  debt,  when,  x.  250. 
interest,  when,  x.  250. 
using  trust-money,  x.  251. 
misapplying  funds,  x.  251. 
each  other,  x.  255. 
Libel,  what,  vi.  337. 

what  shall  be  said  a,  vi.  338. 

must  be  in  writing,  vi.  338. 

degree  of  defamation  to  make  a,  vi.  338. 

must  be  malicious,  vi.  341,  342,  357.  _ 

to  charge  one  with  smuggling  is  a,  vi.  343. 

when  against  a  class,  vi.  343. 

Vol.  X.— 85  3L 


674  GENERAL   INDEX. 

Libel,  affecting  a  person's  trade,  vi.  343,  347. 

a  privileged  communication  is  not  a,  vi.  343,  344. 
publication  of  privileged  speech  is  a,  vi.  344,  345. 
petition  to  general  assembly,  when  not  a,  vi.  345. 
allegory,  when  a,  vi.  345. 
irony,  when  a,  vi.  345. 
mere  obscene  ribaldry  a,  vi.  346. 
reflections  on  Christianity  a,  vi.  346. 
whether  proceedings  in  courts  of  justice  are  a,  vi.  348. 
pleading  the  truth  of  a,  when  allowed,  vi.  349. 
when  words  of  are  presumed  to  be  malicious,  vi.  350. 
may  be  justified,  when,  vi.  351. 
requisites  of  a  plea  of  justification  of  a,  vi.  352. 
punishment  of  maker  of  a,  vi.  359. 
pleading  and  evidence  in  cases  of,  vi.  359. 
Libeller,  who  is  a,  vi.  353. 

author  is  a,  vi.  353. 
composer  is  a,  vi.  353, 
publisher  is  a,  vi.  354. 
proprietor  of  printing  office  is  a,  vi.  355. 
how  punished,  vi.  359. 
Liber  homo,  juror  must  be,  v.  347. 

meaning  of,  v.  348. 
Liberum  tenemcntum,  effect  of  plea  of,  ix.  509,  540. 

replication  to  a  plea  of,  ix.  535. 
Liberties,  bailiffs  of,  i.  602. 
Library,  what,  vii.  592. 
License  to  marry,  when  granted,  vi.  465. 

void,  vi.  466. 
trade,  effect  of,  viii.  33. 
Lien  of  attorney  on  his  client's  papers,  i.  503. 
lunatic's  estate,  i.  504. 
a  decree,  i.  504. 
creditor  on  bankrupt's  property,  i.  730,  803. 
innkeeper,  what,  ix.  662. 
Life-estate,  what,  iii.  452.     See  Estate  for  Life. 
how  created,  vi.  30,  33. 
tenant,  when  to  give  security,  vi.  198. 
Ligam,  what,  viii.  35. 
Lighthouses,  king's  prerogatives  in,  viii.  33. 

where  to  be  erected,  viii.  34.  % 

Lightermen  are  common  carriers,  ii.  151. 
Limitation,  how  it  differs  from  a  condition,  ii.  287. 
what  are  words  of,  ii.  288. 
over,  when  too  remote,  vi.  198. 

effect  of,  viii.  381. 
of  chattel  interest,  effect  of,  vi.  267.  ' 

difference  between  a  condition  and  a,  viii.  381. 
of  actions,  what,  vi.  362. 

•  government  not  affected  by,  vi.  362. 
at  common  law  before  stat.  32  II.  8,  c.  2,  vi.  363. 
pursuant  to  stat.  32  H.  8,  c.  2,  and  21  Jac.  1.  c.  16,  vi.  364. 
in  possessory  actions,  vi.  364. 
real  actions,  vi.  364. 
furmedons,  vi.  364. 
running  of,  vi.  368. 
possession,  effect  of,  vi.  368. 

penal  statutes  vi.  371. 
in  actions  of  assault  and  battery,  vi.  374. 
slander,  vi.  374. 
contract,  vi.  374. 
trespass,  vi.  374. 
detinue,  vi.  374. 
trover,  vi.  374. 
account,  vi.  374. 


GENERAL    INDEX.  675 

Limitation  of  action,  in  case,  vi.  374. 

specialty  out  of  the  statute,  vi.  376. 
judgments  out  of  the  statute,  vi.  376. 
trusts  out  of  the  statute,  vi.  378. 
runs  against  a  legacy,  when,  vi.  380. 
begins  to  run,  when,  vi.  381. 
in  what  court  it  runs,  vi.  385. 
when  a  bar  in  equity,  vi.  387. 

the  admiralty,  vi.  387. 
exceptions  in  the  statute,  vi.  388. 
as  to  infants,  vi.  388. 

persons  beyond  sea,  vi.  391. 
want  of  parties,  vi.  393. 

court,  vi.  395. 
commencement  of  action,  vi.  397. 
when  debt  is  revived,  vi.  399. 
pleading  the  statute  of,  vi.  404. 

plea  of  the  act  of,  in  equity  need  not  be  accompanied  by  an  answer,  vi.  405. 
one  of  several  executors  may  plead  the  act  of,  vi.  405. 
the  act  of,  does  not  run  when  one  of  the  parties  is  an  infant,  vi.  406. 
who  may  plead  the  act  of,  vi.  406. 

the  act  of,  of  the  country  where  suit  is  brought  governs,  vi.  406. 
plaintiff  may  avail  himself  of  the  act  of,  against  a  set-off,  without  plead- 
ing it,  vi.  405,  406. 
in  cases  of  usury,  x.  306. 
express  trusts  are  not  within  the  act  of,  x.  192. 
debt  barred  by  the  act  of,  cannot  be  proved  in  bankruptcy,  i.  716. 
state  not  bound  by  the  act  of,  viii.  90,  94. 
when  executor  must  plead  the  act  of,  iv.  102. 
Lineal  descent,  what,  iii.  105. 

warranty,  what  is  a  bar  to,  x.  402. 
Linen  considered  furniture,  when,  vi.  193,  1*95. 
Lis  pendens,  effect  of,  vii.  113. 
what  is,  vii.  115. 
Live  property,  remedy  for  injuries  to,  ix.  472. 
Livery  of  seisin,  what,  iv.  200. 
in  deed,  iv.  200. 
law,  iv.  201. 
effect  of,  iv.  203  ;  iii.  588. 
what  will  pass  by,  iv.  210. 
how  to  be  made  by  attorney,  iv.  221. 
stable,  not  an  inn,  v.  228. 
Lives,  insurance  upon,  vi.  743. 
Local  actions,  what  are,  i.  78. 
Lodger,  rights  of,  v.  708. 

when  guilty  of  larceny,  iv.  184. 
Log  book,  when  evidence,  iii.  576. 
Long  terms,  what,  v.  435. 
Lord  of  the  soil,  interest  in  common,  ii.  266. 
remedies  against,  ii.  268. 
a  copyhold,  powers  of,  ii.  404. 
spiritual,  who  is,  ii.  640. 
temporal,  who  is,  ii.  640. 

of  manor,  jurisdiction  of,  in  probate  of  wills,  iv.  49. 
'sday,  what,  i.  601 ;  iv.  637.     See  Sunday. 
Loss  of  instrument,  how  proved,  iii.  595. 
vessel,  what,  vi.  660. 

when  presumed,  vi.  663. 
Lost  deed,  how  proved,  iii.  586. 

note,  who  entitled  to,  vi.  792. 
Lot,  effect  of  jury  drawing,  to  make  a  verdict,  ix.  588. 
Lunacy  of  principal,  a  revocation  of  authority,  v.  30. 
partner,  dissolves  the  partnership,  vi.  589. 
Lunatic,  who  is  a,  v.  6. 

how  found  such,  v.  7. 


676  GENERAL   INDEX, 

Lunatic,  when,  is  out  of  jurisdiction  of  the  court,  v.  8. 
excused  for  crime,  v.  10. 
provision  for,  v.  12,  16. 
wife  of,  may  be  endowed,  v.  20. 
may  make  a  will,  when,  v.  21. 

not,  v.  29,  30. 
stultify  himself,  v.  26. 
acts  in  pais  of,  when  not  good,  v.  25. 

in  a  court  of  record,  valid,  v.  25. 
contract  of,  when  void,  v.  29. 

enforced  in  equity,  v.  31. 
estate  of,  how  to  be  sold,  v.  31. 
stocks  of,  how  managed,  v.  32. 
when  a  trustee,  committee  shall  convey,  v.  33,  34. 
when  absent  abroad,  effects  of,  v.  33. 
admittance  to  copyhold  landa,  effect  of,  v.  37. 
agreement  of,  when  to  be  completed,  v.  42. 
can  be  a  witness,  when,  iii.  474. 
cannot  be  an  executor,  iv.  9. 
acts  of  record  of,  when  binding,  iv.  255. 
legacy  to,  to  whom  payable,  vi.  331. 
marriage  of,  when  void,  vi.  498. 
when  able  to  make  a  will,  x.  482,  483. 
Lying  in  grant,  what  things  are,  iii.  588. 

M. 

Mainprise,  what,  how  it  differs  from  bail,  i.  530. 
Machinery,  when  new,  how  bound  by  previous  mortgage,  vii.  163. 
Madman,  how  punished  for  treason,  ix.  382. 
Mainsworn,  meaning  of,  ix.  62. 

Maintenance,  support,  interest  on  a  legacy  allowed  by  way  of,  vi.  316,  328. 

when  allowance  for,  may  be  increased,  vi.  329. 
wife  not  entitled  to  maintenance  by  way  of  allowance  of  in- 
terest, vi.  329. 
is  made  only  for  infants  and  not  adults,  vi.  329. 
natural  children  are  not  entitled  to  allowance  of  interest  by 

way  of,  vi.  329. 
father  liable  for  children's,  when,  vi.  330 
criminal,  what,  vi.  410. 

kinds  of,  vi.  410. 

nivalis,  vi.  410. 
cuvialis,  vi.  410. 
what  acts  are  vi.  412. 

1.  when  justifiable  in  respect  of  interest,  vi.  412. 

2.  how  far  in  respect  of  kindred,  vi.  413. 

3.  by  landlord,  &c,  vi.  413. 

4.  as  respects  charity,  vi.  413. 

5.  by  counsellor,  vi.  413. 
how  punished,  vi.  414. 

restrained  by  statute,  vi.  414. 
by  buying  titles,  vi.  415. 

when  a  grant  cannot  be  made,  on  account  of,  iv.  513. 
Majority  of  commoners,  rights  of,  ii.  275. 

a  corporation,  powers  of,  ii.  447,  459,  460,  461,  465. 
part  owners  of  ships,  rights  of,  vi.  591. 
Mala  pvaxis,  punishment  for,  vii.  187,  204. 
Malice,  what,  vi.  357. 

required  to  make  a  libel,  vi.  341,  343. 

constitute  slander,  ix.  64,  72. 
pvepense,  what,  vii.  183,  213. 
Malicious  prosecutions,  action  on  the  caselies  for,  i.  138. 
Managers  of  a  lottery,  when  liable  on  their  contract,  i.  158. 
corporation,  when  liable,  i.  158. 


GENERAL   INDEX.  677 

Mandamus,  what,  vi.  418,  419. 
origin  of,  vi.  418. 
nature  of,  vi.  419. 
form  of,  vi.  420. 
when  granted,  vi.  422. 

to  restore  an  officer,  vi.  422. 

commissioners  of  highways,  vi.  428. 
parish  clerk  to  amend  his  record,  vi.  428. 

deliver  records,  vi.  428. 
clerk  of  a  county,  vi.  428. 

a  court  of  Common  Pleas  to  enter  judgment,  vi.  428. 

seal  a  bill  of  exceptions, 
vi.  429. 
a  bishop  to  admit  a  chaplain,  vi.  431. 
does  not  lie  to  restore  a  private  officer  who  has  nothing  to  do  with  the 
public,  vi.  427. 
when  the  party  has  another  remedy,  vi.  429. 
to  compel  a  court  to  enter  a  verdict  in  a  particular  way,  vi.  432. 
correct  an  erroneous  judgment,  vi.  433. 
Common  Pleas  to  vacate  a  rule,  vi.  433. 
amend,  vi.  433. 
control  chamber  business  of  a  judge,  vi.  433. 
a  court  acting  under  a  special  commission  which  has  ex- 
pired, vi.  433. 
what  removal  will  entitle  an  officer  to  a,  vi.  433. 

lies  to  inferior  courts  and  magistrates  to  compel  them  to  do  justice,  vi.  43-/(. 
by  what  authority  issued,  vL  443. 
to  whom  to  be  directed,  vi.  444. 
by  whom  to  be  returned,  vi.  446. 
obedience  to,  how  enforced,  vi.  446. 
what  is  a  good  return  to,  vi.  447. 
traversing  the  return  to,  vi.  450. 
party's  remedy  for  a  false  return  to,  vi.  451. 
peremptory,  when  awarded,  vi.  452. 

jurisdiction  of  the  Supreme  Court  in  cases  of,  ii.  799,  802. 
Circuit  Courts,  ii.  812. 
Mankind,  what,  ix.  159. 
Mansion-house,  what,  ii.  135,  136. 
Manslaughter,  what,  vii.  183,  205. 

no  accessaries  in,  vii.  205. 
benefit  of  clergy  in  cases  of,  when,  vii.  205. 
Manufactories,  when  nuisances,  vii.  229. 
Map,  (old,)  when  evidence,  iii.  578. 
Marine  interest,  what,  vi.  749. 
Mariners,  who  aro,  vi.  COL     See  Wages. 

mate  considered  as  one  of  the,  ii.  740 ;  vi.  614,  616. 

cook  may  sue  as  a  mariner,  ii.  740  ;  vi.  614. 

steward  so  considered,  ii.  740. 

purser  is  a,  ii.  740. 

duties  of,  vi.  606. 

cannot  abandon  the  vessel,  when,  vi.  606. 

when  they  may  sue  in  the  admiralty,  ii.  740. 

liabilities  of,  vi.  G01. 

to  correction,  vi.  601. 

forfeiture  of  wages,  vi.  602. 
not  entitled  to  extra  pay  for  extraordinary  exertions,  vi.  606. 
discharge  of,  in  foreign  ports,  vi.  606. 
rights  of,  vi.  601. 

to  wages,  vi.  601. 
lien  for  their  wages,  vi.  602. 
Marital  rights  of  husband,  ii.  30.  m 

when  a  secret  conveyance  is  a  fraud  on,  iv.  394. 
Maritime/,  incrementa,  rights  of  king  to,  viii.  18,  22. 
Mark,  when  a  sufficient  signature,  x.  490. 
Markets,  how  right  to,  must  commence,  iv.  154. 

3l2 


678  GENERAL   INDEX. 

Markets,  remedy  for  disturbance  of,  iv.  155. 
when  to  be  holden,  iv.  156. 
how  long  to  continue,  iv.  15G. 
tolls  due  to  owners  of,  iv.  158. 
duty  and  power  of  owners  of,  iv.  157. 
who  exempt  from  tolls  in,  iv.  160. 
property  transferred  when  sold  in,  iv.  160. 
how  far  it  extends,  iii.  23. 
house,  no  dower  in,  iii.  196. 
when  a  nuisance,  vii.  227. 
not,  vii.  227. 
Marriage,  what,  vi.  454. 

who  may  contract,  vi.  455. 
of  royal  family,  vi.  456. 
bars  to,  vi.  457. 

kindred,  vi.  457. 
espousals,  vi.  460. 

reputation,  when  evidence  of,  vi.  460,  462. 
contract  of  in  presenti,  vi.  460. 

in  futuro,  vi.  461. 
promise  of,  effect  of,  vi.  461. 
solemnization  and  ceremonies  of,  vi.  462. 
of  Jews,  vi.  469. 
Quakers,  vi.  469. 
Sabbatarians,  vi.  462. 
effect  of  Gretna  Green,  vi.  469. 
Scotch,  effect  of,  vi.  469,_  470,  475. 
of  persons  under  age,  vi.  471. 
cohabitation,  when  evidence  of,  vi.  472. 
foreign,  vi.  472.     See  Foreign  Marriages. 
by  forcible  abduction,  vi.  482. 
clandestine,  what,  vi.  482. 
improvident,  what,  vi.  482. 
offences  against,  vi.  482. 
contracts  in  fraud  of,  void,  vi.  488. 
continuance  of,  vi.  491. 
elopement,  effect  of  on,  vi.  491. 
abduction  of  wife,  effect  of  on,  vi.  493. 
proof  of,  when  requisite,  vi.  494. 
divorces,  effect  of,  vi.  496.     See  Divorce. 
when  void  for  fraud,  vi.  498. 
with  lunatic  void,  vi.  498. 
effect  of  conditions  in  restraint  of,  vi.  271. 
condition  of,  with  consent,  vi.  287. 
lines,  what,  vi.  474. 
brokage,  what,  vi.  482. 

how  far  a  revocation  of  the  acts  of  the  wife,  ii.  30. 
debts  of  the  wife  contracted  before,  how  to  be  paid,  ii.  33. 
dejure,  when  required  to  make  husband  responsible  for  wife's  debts,  ii.  45. 
nullity  of,  effect  on  children,  ii.  83. 
agreements  upon,  consideration  of,  i.  176. 
settlement,  when  fraudulent,  iv.  422. 
what  is  evidence  of,  iv.  189. 
of  lunatics,  when  void,  v.  30. 

infant,  when  valid,  v.  99. 
requisite  to  entitle  to  dower,  iii.  206. 
how  far  a  revocation  of  a  will,  x.  568. 
Married  woman,  when  she  cannot  be  convicted  of  murder,  vii.  184. 
Marshals,  attachment  for  contempt  against,  i.  468. 
Marshalling  assets,  what,  iv.  114. 
Marshfllsea,  court  of  the,  ii.  753. 
Mass  forbidden,  vii.  388. 
Master,  who,  vi.  500.     See  Apprentices. 

power  of,  over  apprentice,  vi.  510. 

justices  of  the  peace  may  compel  to  provide  for  apprentice,  v.  510. 


GENERAL  INDEX.  679 

Master,  disputes  between  apprentice  and,  vi.  510. 

dissolution  of  contracts  between,  and  apprentice,  vi.  530. 
when  acts  of  servant  are  deemed  acts  of,  vi.  533. 
when  entitled  to  servant's  wages,  vi.  534. 
answerable  for  servant's  acts,  vi.  535. 
liable  for  goods  bought  on  credit,  by  servant,  vi.  539,  540. 
authority  to  punish  servant,  vi.  549. 
remedy  for  injuries  to  his  servant,  vi.  550. 
may  justify  defending  his,  vi.  551. 
of  a  ship,  rights  of,  vi.  592. 

responsibilities  of,  vi.  593. 
may  hypothecate  ship,  vi.  625,  626. 
when  affected  by  the  fraudulent  act  of  his  servant,  iv.  383. 
rights  of,  by  the  custom  of  London,  iii.  49. 
Mate  is  a  mariner,  ii.  740. 

Material,  to  convict  of  perjury,  the  matter  deposed  must  have  been,  vii.  426. 
Matter  of  estoppel,  of  a  verdict  which  is  contrary  to  a,  x.  352. 

record,  of  a  verdict  which  is  contrary  to  a,  x.  351. 
Matters  in  dispute,  meaning  of,  ii.  801,  807. 
Mayhem,  defined,  vi.  407. 

how  punished,  vi.  407, 
remedy  for,  by  action,  vi.  408. 

indictment,  vi.  408. 
appeal,  vi.  408. 
when  damages  in,  shall  be  increased,  vi.  408. 
appeal  of,  i.  293. 
Meadows,  waste  to,  x.  423,  428. 

Measure,  when  not  required  to  be  stated  in  declaration,  vii.  513. 
Medals,  what  passes  by  a  bequest  of,  vi.  195. 
Meetings  of  corporations,  their  powers,  ii.  447. 
Members  of  corporations,  when  personally  liable,  ii.  455. 

qualifications  of,  ii.  455. 
what  constitutes,  ii.  457. 
amotion  of,  ii.  458,  465. 
rights  and  liabilities  of,  ii.  458. 
concurrence  required,  ii.  459. 
quorum  of,  ii.  459. 
proceedings  of,  ii.  461. 
election  of,  ii.  465. 

when  restored  by  mandamus,  vi.  434. 
Congress,  privilege  of,  viii.  183.^  See  Privilege. 
extent  of  privilege,  viii.  191. 
Memorandum  in  writing  requisite  under  the  statute  of  frauds,  i.  187. 

of  notary,  when  evidence,  iii.  576. 
Memorial,  when  requisite,  i.  279. 

form  of,  i.  282. 
Merchants'  accounts,  what  are,  vi.  389 

what  are  not,  vi.  390. 
kinds  of,  vi.  553. 

alien,  who  are,  vi.  554.     See  Alien. 
Merger,  what,  iv.  144. 

of  lease  for  years  with  the  union  of  the  freehold,  v.  648. 
Mesne  lord,  who  is  a,  ix.  366. 

process,  consequences  of  an  escape  on,  iii.  404. 
profits,  how  recovered,  iii.  300. 

limitation  to  action  for,  iii.  302. 
defence  to  an  action  for,  iii.  303. 
evidence  in  action  for,  iii.  304. 
Method,  patent  cannot  be  granted  for  a,  viii.  136. 
Midwife,  slander  against  a,  ix.  52. 

Military,  punishment  to  which  soldiers  are  liable,  ix.  181. 
Militia,  who  privileged  from  serving  in  the,  viii.  163. 
Mill,  dower  in  a,  how  admeasured,  iii.  197. 
ejectment  will  lie  for  a,  iii.  277. 
effect  of  a  grant  of  a,  iv.  521. 


680  GENERAL  INDEX. 

Mill,  fixtures  in  a,  when  bound  by  a  mortgage,  vii.  163. 
Minister,  (ecclesiastical,)  who  is  a,  vi.  463. 
Ministerial,  what  is,  v.  401,  410. 
Miner,  when  considered  a  trader,  i.  799. 
Mines,  when  dower  may  be  had  in,  iii.  198. 

king's  prerogatives  in  relation  to,  viii.  40. 
what  belong  to  the  king,  viii.  40. 

subject,  viii.  40. 
what  is  waste  to,  x.  428. 
Minor  cannot  sit  as  peer  in  parliament,  ii.  651. 
endorsement  of,  when  fraudulent,  iv.  387 
when  entitled  to  his  earnings,  v.  126,  169.     See  Infant, 
Minority,  what,  v.  97.     See  Infant,  Infancy. 

father  may  relinquish  son's  minority,  v.  105. 
Misbehaviour  of  jurors,  verdict  set  aside  for,  x.  316. 
parties,  verdict  set  aside  for,  x.  321. 
Misdescription  of  property  sold,  effect  of,  v.  633. 
Misericordia,  when  to  be  entered,  iv.  229. 
Misnomer  what,  vii.  4.     See  Names. 
cases  of,  vii.  5,  6. 
of  corporation,  effect  of,  vii.  16. 
when  to  be  taken  advantage  of,  vii.  18. 
manner  of  pleading  a,  vii.  19. 
who  may  take  advantage  of,  vii.  21. 
when  fatal  on  an  indictment,  v.  74. 
in  pleading,  effect  of,  i.  9. 
Misrecital,  effect  of,  iv.  521. 

in  a  declaration,  vii.  492. 
pleading,  ix.  263. 
of  a  statute  in  an  affidavit  to  hold  to  bail,  effect  of,  i.  541. 
indictment,  effect  of,  v.  88. 
Misrepresentation  as  to  credit,  when  fraudulent,  iv.  386. 

of  the  value  of  property  by  purchaser,  when  fraudulent,  iv.  387. 
as  to  soundness  of  a  horse,  when  fraudulent,  iv.  388. 
when  binding  on  party  making  it,  iv.  400. 
in  cases  of  insurance,  effect  of,  vi.  691. 
Mistake  of  law  by  arbitrator  will  not  vitiate  his  award,  i.  363,  364. 
in  name,  when  to  be  taken  advantage  of,  vii.  18. 
of  the  judge,  when  a  reason  for  granting  a  new  trial,  ix.  591. 
Mitter  le  estate,  releases  that  inure  by  way  of,  viii.  257. 
droit,  releases  that  inure  by  way  of,  viii.  260. 
Mittimus,  form  and  requisite  of,  ii.  253,  254.     See  Commitment. 
Mixed  statutes,  what,  ix.  212. 

tithes,  how  to  be  set  out,  x.  44.     See  Tithes. 
Modo  et  forma,  effect  of,  x.  343. 
Modus,  what,  x.  50. 

certainty  required  in  a,  x.  53. 
of  a,  which  has  not  been  constantly  paid,  x.  57. 
of  a  leaping,  x.  58. 
of  a  rank,  x.  58. 

of  a,  which  amounts  to  prescription,  x.  56. 
liable  to  fraud,  x.  61. 

for  such  persons  as  live  out  of  the  parish,  x.  61. 
extent  of  a,  x.  62. 
suit  in  equity  to  establish  a,  x.  90. 
Mollithr  manus  impomit,  plea  of,  its  effect,  i.  377. 
Money,  what,  viii.  37. 

origin  of,  viii.  38. 

when  considered  as  land,  iv.  610 ;  i.  168. 
what  will  pass  by  a  bequest  of,  vi.  193. 
legacies,  when  chargeable  on  a  fund,  vi.  294. 

specific,  vi.  294. 
when  counterfeiting,  is  treason,  ix.  402. 
it  is  treason  to  bring  into  tin'  realm  counterfeit,  ix.  407. 
had  and  received,  what  action  lies  for,  i.  402,  407. 


GENERAL   INDEX.  681 

Money  had  and  received,  declaration  for,  i.  447. 

paid  on  an  illegal  contract,  may  be  recovered  back,  i.  408. 

when  not,  i.  408. 

with  a  full  knowledge  of  the  facts,  cannot  be  reco- 
vered back,  i.  411. 
Monks  may  act  as  attorneys  in  fact,  i.  520. 

cannot  be  devisees  of  land,  vi.  10. 
Monopoly,  what,  vii.  22. 

how  restrained,  vii.  24. 
Monstrans  defait,  what,  vii.  023. 

de  droit,  what,  viii.  107. 
Month,  what,  viii.  215. 

Moral  obligation,  what,  sufficient  to  support  assumpsit,  i.  427. 
Mortgage,  origin  of,  vii.  27. 

several  kinds  of,  vii.  28. 

pignus,  vii.  28. 
hi/potheca,  vii.  28. 
vivum  vadium,  vii.  29. 

mortuum,  vii.  29. 
Welch  mortgages,  vii.  31. 
freehold,  vii.  29. 
term  of  years,  vii.  29. 
powers  of  sale  under  a,  vii.  31. 
what  shall  be  deemed  a,  vii.  36,  39,  50. 
interest  on,  vii.  45. 
what  constitutes  a,  vii.  47,  50. 
when  void,  vii.  47. 

good,  though  given  for  future  loans,  vii.  48,  49. 
legal  performance  of  the  condition  of,  vii.  60. 
who  may  redeem,  vii.  62. 
out  of  what  fund,  is  to  be  paid,  vii.  64. 
who  entitled  to  receive  money  due  on,  vii.  84. 
what  is  a  payment  of,  vii.  84. 
is  personal  property,  vii.  86. 

effect  of  renewing  note  for  which  a,  has  been  given,  vii.  88. 
debt,  when  extinguished,  vii.  88. 
effect  of  cancelling  a,  vii.  92. 

of  personal  property,  proceedings  after  forfeiture  of,  i.  661. 
when  presumed  to  be  paid,  vi.  380. 

act  of  limitations  begins  to  run  in  case  of  a  guaranty  to  pay  a,  vi.  383. 
provision  in  a,  that  on  payment  of  the  money  it  shall  be  void,  does  not 
raise  an  implied  covenant,  ii.  558. 
Mortgaged  premises,  effect  of  release  of  a  part,  viii.  251. 
Mortgagee,  rights  of,  vii.  31. 

has  a  mere  lien,  vii.  48. 

interests  of,  vii.  50, 

entitled  to  possession,  vii.  51. 

when  he  may  present  to  benefices,  vii.  54. 

may  pay  off  senior  encumbrances,  vii.  55. 

may  vote  for  members  of  parliament,  when,  vii.  57. 

when  liable  on  covenants,  yii.  57. 

cannot  rent  mortgaged  premises  from  mortgagor,  vii.  59,  60. 

effect  of  death  of  a  joint,  vii.  87. 

buying  equity  of  redemption  as  to  part  of  premises,  by,  vii.  88. 
payment  to,  vii.  88. 
precedency  as  to  right  to  redeem  among,  vii.  89. 
disputes  among,  vii.  93,  133,  182. 
equities  and  priorities  among,  vii.  133. 
may  bring  ejectment  at  law,  vii.  158. 
may  file  a  bill  to  redeem,  though  he  may  have  pledged  the  mortgage, 

vii.  160. 
when  to  be  made  a  party,  vii.  160. 
how  to  account,  vii.  163. 
allowed  expenses  for  repairs,  vii.  163. 
in  possession  not  allowed  for  improvements,  vii.  166. 

Vol.  X.— 86 


682  GENERAL   INDEX. 

Mortgagee,  how  to  work  mines,  vii.  166. 
sale  by,  when  valid,  vii.  167. 
Mortgagor,  rights  of,  vii.  30. 

interests  of,  vii.  50. 
considered  as  owner,  vii.  51. 

levying  a  fine  by,  does  not  destroy  rights  of  mortgagee,  vii.  52. 
may  present  to  benefice,  vii.  53. 

when  he  may  vote  for  members  of  parliament,  vii.  57. 
effect  of  waste  by,  vii.  58. 
not  to  account  to  mortgagee,  vii.  59. 
must  do  equity  before  he  can  redeem,  vii.  134. 
Mortmain,  statutes  prohibiting  purchases  in,  ii.  189. 

what  things  are  exempt  from  the  statutes  of,  ii.  191. 
effect  of  the  statutes  of,  vi.  7. 
Mortuus,  return  of,  viii.  714. 

Mother,  when  she  can  bind  her  children  by  her  contracts,  i.  156. 
entitled  to  the  custody  of  her  bastard  child,  ii.  89. 
has  no  action  for  falsely  calling  her  daughter  a  bastard,  ix.  104. 
Mourning,  what  is  allowed  for,  iv.  114. 
Movable  goods,  what  pass  by  a  bequest  of,  vi.  193. 
Mr.  when  equal  to  Mister,  vii.  438. 

Mulatto,  when  it  is  actionable  to  charge  one  with  being  a,  ix.  32,  55. 
Mulier,  rights  of,  ii.  91. 
who  is  a,  ii.  92. 
when  barred,  v.  111. 
Murage,  king  may  grant,  viii.  114. 
Murder,  what,  vii.  183. 

when  duress  is,  vii.  185. 
neglect  is,  vii.  185. 
inciting  another  to  kill  himself  is,  vii.  186. 
when  owner  of  mischievous  animal  is  guilty  of,  vii.  186. 
physician  is  guilty  of,  vii.  187. 

woman  dies  in  an  attempt  to  cause  her  abortion,  it  is,  vii.  186. 
to  make  the  act  the  party  must  die  within  a  year  and  day,  vii.  188,  190. 
what  persons  are  subjects  of,  vii.  189. 

alien  enemy,  vii.  189. 
a  pregnant  woman,  vii.  189. 
a  slave,  vii.  189. 
malice  required  to  constitute,  vii.  190. 

when  implied,  vii.  196. 
when  an  officer  is  guilty  of,  vii.  198. 
charge  of,  actionable,  ix.  33. 
Murdravit,  when  required  in  an  indictment,  v.  68. 
Mutiny,  effect  of  insurance  of  negroes  who  perished  by,  vi.  660. 

how  punished,  ix.  165. 
Mutual  promises  will  support  assumpsit,  i.  427. 
declaration  on,  i.  449. 
debt,  what,  i.  810. 
credit,  what,  i.  810. 

dealings,  effect  of  act  of  limitations  on,  vi.  390. 
debts  may  be  set  off,  viii.  640. 
Mutuality  is  requisite  in  an  award,  i.  336. 
Mystery,  meaning  of,  vii.  12. 

•N. 

Naked  authority,  revocable,  when,  i.  529. 
Name,  what,  vii.  4.     See  Misnomer. 

difference  between  Christian  and  surname,  vii.  7. 

when  truly  put,  and,  afterwards  varied  from,  vii.  14. 

mistake  of,  in  granta  and  judicial  proceedings,  vii.  15. 

variance  between  declaration  and  evidence  as  to,  vii.  497,  501. 

effect  of  omitting  middle,  vii.  501. 

in  what  agent  is  to  make  contracts,  i.  525. 

when  mistake  in  relation  to  a,  may  be  amended,  i.  241. 


GENERAL   INDEX.  683 

Name,  of  corporation,  effect  of,  when  varied,  ii.  440,  441. 
mistake  in,  when  immaterial,  iii.  736. 

of  party  injured,  when  to  be  set  out  in  an  indictment,  v.  75 
who  takes  under  a  devise  to  persons  of  testator's,  vi.  14s. 
effect  of  mistake  in  legatee's,  vi.  189. 
leaving  a  blank  for,  vi.  189. 
omission  of  a,  how  supplied,  vi.  189. 
effect  of  assumption  of  a,  vi.  281. 
and  blood,  effect  of  a  devise  to  persons  of  my,  vi.  148. 
Narrow  seas,  what,  viii.  18. 

Natural  children,  when  not  entitled  to  maintenance,  vi.  329. 
Naturalization  and  denization,  their  difference,  i.  198. 

effects  of,  i.  200. 
Nature,  who  is  guardian  by,  iv.  540. 
Navigable  river,  what  is  a  nuisance  in  a,  vii.  227. 
Navigation,  how  encouraged,  vi.  849. 
■Ne  dona  pas  per  lefait,  effect  of  this  plea,  vii.  531. 
exeat  regno,  when  to  issue,  viii.  49. 
unques  accouple  can  be  pleaded  only  in  dower,  ii.  91. 
when  not  a  good  plea,  vii.  582. 
Nearest  relations,  who  take  under  a  bequest  to,  vi.  188. 
Necessaries  furnished  to  wife  make  the  husband  responsible,  ii.  38. 
when  an  infant  is  liable  for,  v.  Ill,  117. 

not  liable,  v.  121. 
what  are,  v.  119. 
Necessity,  when  goods  are  thrown  over  by,  who  loses  them,  ii.  154. 
Negative  covenants,  what,  ii.  551. 
pleas,  what,  vii.  591. 

force  of,  vii.  532. 
statutes,  what,  ix.  234. 
Neglect  of  officer,  how  punished,  vii.  325. 
Negligence  of  bailee,  what,  i.  617. 

makes  him  responsible,  i.  619. 
carrier  responsible  for,  ii.  155,  156. 
sheriff  liable  for,  viii.  722. 
Negligent  escape,  what,  iii.  403,     See  Escape. 

waste,  what,  x.  422.     See  Waste. 
Negotiable  paper,  a  party  to  such  paper  cannot  be  a  witness,  when,  iii.  503. 

notes,  what,  vi.  769. 
Negro,  when  he  can  recover  for  compulsory  services,  i.  432. 
a  legacy  of,  is  specific,  vi.  292. 
effect  of  a  bequest  of  female,  who  is  pregnant,  vi.  293. 
emancipated  by  getting  on  board  of  a  British  ship  at  sea,  ix.  473. 
in  England,  trover  does  not  lie  for  a,  ix.  649. 
Neutral,  who  is  a,  vi.  730. 
Neutrality,  warranty  of,  vi.  727. 
New,  what  is,  viii.  141. 

assignment  in  trespass,  when  proper,  ix.  535. 
promise,  when  binding  on  bankrupt,  i.  808. 

of  infant,  when  binding,  v.  142. 
statutes,  what,  ix.  213. 
trial,  in  general,  ix.  582. 

by  whom  to  be  granted,  ix.  583. 

in  what  cases,  ix.  585. 

must  be  granted  for  the  whole  case,  ix.  587. 

as  to  all  defendants,  ix.  587. 
after  a  trial  at  bar,  ix.  591. 

on  account  of  defect  or  mistake  of  the  judge,  ix.  591. 
on  account  of  defect,  mistake  or  fault  of  the  jury,  ix.  596. 
because  the  party  has  discovered  new  evidence,  ix.  620. 
when  granted  in  ejectment,  ix.  624. 

on  an  indictment,  ix.  626. 
information,  ix.  626. 
in  a  penal  action,  ix.  625. 
Newly  discovered  evidence,  when  a  new  trial  shall  be  granted  on  account  of,  ix.  617, 
620. 


684  GENERAL   INDEX. 

Newspaper,  when  custom  to  continue  advertisement,  bad,  iii.  26. 
Next  of  kin  entitled  to  administration,  when,  iv.  67. 

when  abroad  may  nominate  administrator,  iv.  67. 
in  equal  degrees,  who  are,  vi.  187. 
who  take  under  a  bequest  to,  vi.  188. 
Night,  what  is,  ii.  135. 
Ni/iils,  effect  of  two  returns  of,  viii.  621. 
Nil  debet,  when  a  proper  plea,  vii.  273,  533,  537. 

proper  to  debt  for  a  ground  rent,  vii.  580. 

an  escape,  vii.  580. 
bad  to  an  action  of  covenant,  when,  vii.  581. 
assumpsit,  vii.  581. 
on  a  judgment,  vii.  581. 

foreign  judgment,  vii.  581. 
is  safe  on  action  for  a  penalty,  vii.  581. 
habuit  in  tenementis,  when  a  good  plea,  ii.  609. 

improper,  viii.  573. 
Nisi  prius,  established,  ii.  713. 

trial  at,  what  is,  ix.  569. 
No  award,  when  a  good  plea,  i.  351. 
Noble,  value  of,  vii.  242,  243. 
Nolle  prosequi,  effect  of,  viii.  102. 

when  to  be  entered,  viii.  103. 
in  replevin,  effect  of,  viii.  579. 
effect  of,  as  to  one  of  several  joint  obligors,  vii.  255. 
Nomine  pcence,  what,  viii.  498. 

Non-access  of  husband  to  his  wife,  effect  of,  on  her  offspring,  ii.  79,  80. 
cannot  be  proved  by  the  wife,  iii.  478. 
attendance  at  court,  is  a  forfeiture  of  copyhold,  ii.  413. 
cepit,  plea  of,  viii.  557. 

effect  of,  viii.  574. 
compos,  not  capable  to  contract,  i.  154. 

how  to  appear  to  an  action,  i.  485. 
damnificatus,  when  a  proper  plea,  vii.  600. 

not  a  proper  plea,  vii.  277. 
decimando,  prescription  in  a,  x.  63. 
dedit,  plea  of,  when  proper,  iv.  380. 
est  factum,  when  a  proper  plea,  vii.  531. 

proper  in  covenant,  ii.  611. 
est  inventus,  when  sheriff  may  return,  i.  566. 
infringit  conventionem,  when  a  proper  plea,  ii.  611,  612. 
obstantes,  when  granted,  viii.  66. 
payment  of  rent,  effect  of,  ii.  312,  414. 
performance  of  condition,  when  excused,  ii.  335. 
submisit,  plea  of,  i.  351. 

tenent  insimul,  evidence  under  the  plea  of,  v.  297. 
tenure,  plea  of,  vii.  616. 
user  of  a  statute,  effect  of,  ix.  228. 
usurpavit,  is  not  a  good  plea,  vii.  582. 
Nonage,  when  the  parol  shall  demur  for,  v.  162.     See  Parol. 
of  vouchee,  parol  shall  demur  for,  v.  164. 
_  prayee  in  aid,  parol  shall  demur  for,  v.  165. 
Nonsense  in  pleading,  when  rejected,  vii.  601 
Nonsuit,  what,  vii.  214. 

who  may  be,  vii.  217. 

may  be  in  a  writ  of  error,  vii.  218. 

Circuit  Court  of  United  States  cannot  order  a,  vii.  219. 

at  what  time  a,  may  be  taken,  vii.  219. 

an  avowant  cannot  be,  vii.  218. 

after  plea  of  tender,  plaintiff  cannot  be,  vii.  219. 

when  one  is  nonsuit,  how  far  another  shall  bo,  vii.  220. 

when  a,  for  a  part,  shall  bo  nonsuit  for  the  whole,  vii.  221. 

effect  of,  vii.  221. 

when  a,  shall  be  no  bar,  vii.  222. 

of  setting  aside  a,  vii.  222. 


GENERAL  INDEX.  685 

Nonsuit,  not  granted  in  replevin,  viii.  579. 

against  government,  viii.  102. 
Not  found,  effect  of  return  of,  viii.  621. 
Notarial  certificate,  of  what  evidence,  vi.  819. 
Note  of  a  fine,  what,  iv.  249. 

Notes,  when  injunction  lies  to  prevent  negotiation  of,  v.  201,  213. 
of  hand,  when  a  bequest  of,  is  specific,  vi.  290. 
lost,  effect  of,  vi.  792. 
Notice  of  husband  not  to  trust  wife,  effect  of,  ii.  44 . 
by  carriers,  effect  of,  ii.  157,  159. 
to  tenant  in  ejectment,  iii.  260. 
of  action  to  be  given  to  justices,  when,  v.  427. 

form  of,  v.  432. 
dissolution  of  partnership,  vi.  587. 

effect  of,  vi.  591. 
non-acceptance,  vi.  819. 

when  required,  vi.  822. 

not  required,  vi.  825,  828. 
waived,  vi.  823,  824. 
impossible,  vi.  824. 
to  be  given,  vi.  826. 
requisites  of,  vi.  825. 
by  whom  to  be  given,  vi.  825. 
of  encumbrances,  when  required,  vii.  124. 

to  whom  to  be  given,  vii.  124. 
set-off,  effect  of,  viii.  058. 
trial,  when  required,  ix.  572. 
Nova  custuma,  what,  ix.  Ill,  118. 
Novation,  what,  iii.  99,  100 ;  iv.  149. 
Now,  meaning  of,  vi.  191. 

Nudum  pactum,  no  recovery  can  be  had  on  a,  i.  419,  420,  422. 
Nuisance,  what,  vii.  223. 

obstruction  of  a  river  is  a,  vii.  228. 
railway  when  not  a,  vii.  228. 
brewhouse,  when  a,  vii.  229. 
sty,  when  a,  vii.  229. 
gunpowder,  when  a,  vii.  229,  230. 
manufactories,  when,  vii.  229. 
slaughter-house,  when,  vii.  229. 
what  is  a  public,  vii.  232. 
how  to  be  removed,  vii.  233. 

prevented,  vii.  233. 
may  be  abated,  vii.  233. 
indictment  for  continuing,  vii.  234. 
injunction  for,  vii.  234. 
how  punished,  vii.  234. 
action  for  a,  vii.  235. 
by-laws  to  prevent,  when  good,  ii.  146. 
Nul  agard,  when  it  may  be  pleaded,  i.  352. 

tiel  record  cannot  be  pleaded  with  another  plea,  vii.  647.  ' 
wast,  evidence  under  the  plea  of,  vii.  549. 
Nullam  facerunt  arbitrium,  plea  of,  i.  350. _ 
Nullum  tern-pus  occurrit  regi,  maxim  of,  viii.  95, 157. 
Number  of  legatees,  effect  of  mistake  as  to  the^vi.  189. 
when  not  required  in  a  declaration,  vii.  513. 
pleading,  ix.  505. 
Nuncupative  will,  what,  x.  487,  529. 
requisites  of,  x.  530. 


Oath,  form  of,  iii.  512. 
origin  of,  iii.  512. 
kinds  of,  iii.  512. 


0. 


3M 


686  GENERAL  INDEX. 

Oath  may  be  varied,  when,  iii.  512. 

of  allegiance,  when  required,  viii.  47. 
churchwardens,  what,  ii.  244. 
fealty,  form  of,  viii.  448. 

supremacy,  consequence  of  not  taking  the,  ix.  410. 
Obligation,  what,  viL  236. 

of  contracts,  effect  of  laws  impairing  the,  ix.  229. 
Obligee,  who  can  be,  vii.  247. 

wife  cannot  be,  vii.  247. 
alien  may  be,  vii.  247. 
sole  corporations  cannot  be,  vii.  248. 
party  cannot  at  same  time  be  obligor  and,  vii.  248. 
of  several,  vii.  248. 

bond  given  to  an,  for  the  use  of  another,  vii.  249. 
Obscene  books  are  libellous,  vi.  346. 
Occupancy,  effect  of,  iii.  456. 

what  title  gained  by,  iii.  456. 
Occupant,  who  is  an,  iii.  459. 
general,  iii.  460. 
special,  iii.  460. 
Of  his  body,  effect  of  these  words,  vi.  30. 
Offence,  how  to  be  described  in  an  indictment,  v.  77. 

joint,  when  to  be  charged  in  an  indictment,  v.^83. 
of  not  making  a  declaration  against  popery,  vii.  376. 
Offenders,  how  committed,  ii.  248. 
Office,  defined,  vii.  279. 

right  of  granting  an,  vii.  281,  283,  284. 

assigning  an,  vii.  284. 
grant  of,  by  ecclesiastical  persons,  vii.  285.  _ 
ceremony  to  complete  the  creation  of  an,  vii.  290, 
offence  of  buying  and  selling  an,  vii.  296. 
remedies  to  recover  an,  vii.  305. 
duration  of,  vii.  307,  311. 
cannot  be  granted  in  reversion,  vii.  310. 
may  be  granted  to  commence  infuturo,  vii.  310. 
when  held  during  good  behaviour,  effect  of,  vii.  311. 
by  whom  to  be  executed,  vii.  311. 
when  void  on  account  of  officer's  incapacity,  vii.  312. 
manner  of  executing,  vii.  313. 
when  incompatible,  vii.  313,  314. 
may  be  executed  by  two  or  more  persons,  vii.  315. 
of  deputy,  what,  vii.  316. 
the  forfeiture  of,  vii.  320. 
•  cannot  be  sold,  i.  434. 
belonging  to  bankrupt,  when  it  passes  to  his  assignees,  i.  722. 
lost  by  the  commission  of  felony,  iv.  196. 
when  the  subject  of  a  lease,  v.  438,  440. 
papists  cannot  hold,  vii.  379. 
found,  effect  of,  viii.  108. 
Officer,  defined,  vii.  279. 
public,  vii.  280. 
private,  vii.  280. 
civil,  vii.  280. 
political,  vii.  280. 
judicial,  vii.  280. 
ministerial,  vii.  280. 
military,  vii.  280. 
de  jure,  vii.  283. 
de  facto,  vii.  283. 

by  whom  to  be  appointed,  vii.  281,  283. 
who  may  be  appointed,  vii.  284. 
how  appointed  in  England,  viii.  60. 

the  United  States,  viii.  60. 
qualifications  of,  vii.  284. 
may  be  removed,  when,  vii.  311. 


GENERAL   INDEX.  6S7 

Officer,  may  lose  his  office  by  incapacity,  vii.  312. 
judicial,  cannot  make  a  deputy,  vii.  317. 
superior,  responsible  for  inferior,  vii.  319. 
corruption  of,  how  punished,  vii.  323. 
oppression  of,  how  punished,  vii.  323. 
civil  liability  of,  vii.  325  ;  i.  130. 
bribery  of,  how  punished,  vii.  324,  325. 
may  be  restored  to  his  office  by  mandamus,  vi.  422. 
costs  in  favour  of,  ii.  520. 
powers  of,  viii.  61. 
of  corporations,  how  elected,  ii.  467. 
what  is  slander  against  an,  ix.  45. 
liability  to  and  authority  over  soldiers,  ix.  189. 
when  it  is  treason  to  slay  an,  ix.  408. 
Officina  brevium,  chancery  is  an,  ii.  681. 
Officium,  what,  vii.  279. 
Old  terrier,  when  evidence,  iii.  577. 
Oleron,  laws  of,  ii.  740. 
Omissions  in  a  declaration,  effect  of,  vii.  492. 
Omnia  bona  sua,  effect  of  grant  of,  iv.  531. 

Or  order,  when  these  words  are  required  on  an  endorsement,  vi.  795,  796. 
Orchard,  ejectment  lies  for  an,  iii.  274. 

what  is  waste  to  an,  x.  428. 
Order  of  bastardy,  when  to  be  made,  ii.  95,  96,  101,  103. 
Ordinance,  what,  ix.  217. 
Ore,  when  subject  of  larceny,  iv.  176. 
Organization  of  Senate  as  a  court,  ii.  794. 
Supreme  Court,  ii.  796. 
Circuit  Courts,  ii.  802. 
District  Courts,  ii.  814. 
Original  entries,  how  to  be  made,  iii.  583. 
in  what  book,  iii.  583. 
by  whom,  iii.  583. 
when  to  be  made,  iii.  583. 
effect  of,  iii.  583. 
process,  when  amendable,  i.  239. 
writs,  what,  ii.  684. 
Ornamental  trees,  waste  of,  restrained  by  injunction,  v.  211. 
Orphans,  who  shall  be,  in  London,  iii.  40. 
Ostiarii,  who  are,  v.  480. 
Ouster  in  ejectment,  what,  iii.  278. 

when  presumed,  vi.  369. 
Outlaw  is  not  liber  et  legales  homo,  vii  349. 
cannot  be  a  juror,  vii.  349. 

an  auditor,  vii.  349. 
sue,  vii.  345. 
may  be  heir,  when,  vii.  349. 

tenant  by  the  curtesy,  vii.  349. 
act  as  attorney  in  fact,  i.  520. 
cannot  be  bail,  i.  562. 
goods  of,  when  forfeited,  iv.  341. 
Outlawry,  what,  vii.  326. 

effect  of,  vii.  327. 

in  what  cases  it  lies,  vii.  328. 

in  civil  cases,  vii.  328. 
criminal  cases,  vii.  328. 
by  what  jurisdiction  process  of,  issued,  vii.  330. 
against  whom,  vii.  331. 
a  peer,  vii.  331. 
an  infant,  vi.  331. 
'  a  feme  covert  or  sole,  vii.  332. 
several  defendants,  vii.  332. 
principal  and  accessory,  vii.  334. 
forfeitures  consequent  on,  vii.  335. 

in  criminal  cases,  vii.  336. 


688  GENERAL   INDEX. 

Outlawry,  forfeitures  consequent  on,  in  civil  cases,  vii.  336. 
to  what  forfeitures  in,  shall  relate,  vii.  339. 
disables  a  party  from  suing,  vii.  345,  349. 
when  proceedings  in,  may  be  reversed,  vii.  350. 
manner  of  reversing,  vii.  360. 
appearance  in,  vii.  363. 
scire  facias  in,  vii.  367. 
effect  of  reversal  of,  vii.  368. 

generally,  ix.  437. 
a  good  plea  in  abatement,  i.  2. 
bar,  i.  31. 
Outstanding  term,  benefit  of,  vii.  118. 
Owner  of  ship,  who  is,  vi.  668. 

responsibility  of,  vi.  594,  597. 
a  chattel  may  recover  it  from  a  purchaser  who  bought  it  from  a  bailee,  i.  619. 
Oyer  and  terminer,  established,  ii.  709. 

commissioners  of,  ii.  710. 
jurisdiction  of,  ii.  711. 
proceedings  in,  ii.  712. 
when  demanded,  vii.  623,  629. 

not  grantable,  vii.  20. 
who  is  entitled  to,  vii.  629. 
when  dispensed  with,  vii.  631. 
Oyster  beds,  rights  to,  vii.  455. 

P. 

Packing  jury,  what,  v.  392. 

Palace  court,  what,  ii.  753. 

Palatinate  courts,  ii.  755. 

Panel  of  jurors  to  be  returned,  v.  334. 

Papers,  consequences  to  a  ship  of  having  two  sets  of,  vi.  732. 

when  evidence  in  cases  of  treason,  ix.  429. 
Papists,  who  are,  vii.  370. 

not  allowed  to  sit  in  parliament,  vii.  376. 
cannot  hold  a  place  at  court,  vii.  379. 

office,  civil  or  military,  vii.  379. 
not  allowed  to  live  within  ten  miles  of  London,  vii.  387. 
keep  arms,  vii.  387. 
promote  or  teach  religion,  vii.  388. 
give  popish  education,  vii.  388. 
sell  popish  books,  vii.  391. 
keep  school,  vii.  391. 
present  to  a  church,  vii.  391. 
coerce  a  Protestant  child,  vii.  391. 
purchase,  vii.  394. 
Paraphernalia  belonging  to  widow,  iv.  85. 
Parceners,  who  are,  ii.  355.     See  Coparceners. 
Pardon,  what,  vii.  405. 

kinds  of,  vii.  405.  ■ 

by  whom  granted,  vii.  406 ;  viii.  66. 
for  what  offences  granted,  vii.  406. 
when  grantable  of  common  right,  vii.  409. 
validity  of  a,  vii.  410. 
when  conditional,  vii.  412. 
must  be  accepted,  vii.  413. 
how  taken  advantage  of,  vii.  413. 
effects  of,  vii.  415  ;  viii.  66,  79 ;  iv.  174. 
as  regards  a  witness,  iii.  488. 
conditional,  what,  viii.  66. 
how  granted,  ix.  251. 
of  an  approver,  when  granted,  ix.  302. 
how  construed,  ix.  251. 
Parens  patriae,  king  is,  viii.  65 


GENERAL   INDEX.  689 

Parents'  consent  to  marriage,  when  requisite,  vi.  455. 

Pares,  who  are,  v.  352. 

Part  delicto,  parties  in,  cannot  recover  back  money  paid  on  an  illegal  contract,  i.  408. 

Park,  what  is  a,  iv.  434. 

waste  to  a,  x.  428. 
Parliament,  how  constituted,  ii.  024,  040. 
court  of,  ii.  034. 
antiquity  of,  ii.  034. 
origin  of,  ii.  034. 
how  summoned,  ii.  052. 
who  are  electors  of  members  of,  ii.  057. 
manner  of  passing  bills  by,  ii.  070. 

continuance,  adjournment,  prorogation,  and  dissolution  of,  ii.  075. 
jurisdiction  of  House  of  Lords,  ii.  079. 
writ  of  error  into,  iii.  358. 
papists  cannot  sit  in,  vii.  370. 
Parol  when  the,  shall  demur,  v.  154. 

when  without  plea,  shall  demur,  v.  100. 

upon  what  plea  shall  demur,  v.  101. 

shall  demur  for  the  nonage  of  party,  v.  102. 

vouchee,  v.  104. 
prayee  in  aid,  v.  105. 
shall  demur  in  respect  of  what  estate,  v.  103. 

for  two  defendants,  v.  100. 
lease,  when  invalid,  v.  481. 
evidence,  when  admitted,  iii.  004. 

may  explain  written  evidence,  when,  iii._G05. 
not  allowed  to  contradict  writing,  iii.  005. 
may  prove  vice  in  contract,  iii.  008. 

mistake  and  surprise,  iii.  007,  008. 
explain  an  ambiguity,  iii.  005,  009. 
a  will,  when,  iii.  013. 
Parson,  power  of,  to  make  lease,  v.  480,  520. 
Part  owners  of  ship,  dispute  between  them,  how  settled,  ii.  741. 
rights  of  majority  of,  vi.  591. 
performance  of  contracts,  when  sufficient  to  enforce  specific  performance,  i.  191. 
Partial  loss,  what,  vi.  074. 
Partiality  in  the  sheriff,  a  good  cause  of  challenge  of  the  array,  v.  343. 

of  jurors,  good  cause  for  challenge,  v.  353. 
Particular  customs,  how  construed,  ii.  378. 

estate,  required  to  support  a  remainder,  viii.  400. 
Parties  to  actions  who  may  join,  vii.  407. 

in  actions  ex  contractu,  vii.  407. 
plaintiffs,  vii.  407. 

original  parties,  vii.  407. 
executors  and  administrators,  vii.  409. 
husband  and  wife,  vii.  409. 
defendants,  vii.  409. 

original  parties,  vii.  409. 
executors  and  administrators,  vii.  470. 
husband  and  wife,  vii.  470. 
in  actions  ex  delicto,  vii.  470. 

plaintiffs,  vii.  470.  m% 

injury  to  several  persons,  vii.  4(0. 
wife,  vii.  471. 

defendants,  vii.  471.  .. 

injury  by  several  persons,  vu.  4i  1. 

husband  and  wife,  vii.  472. 
wife,  vii.  472. 
character  of  in  U.  S.  courts,  ii.  807. 
United  States,  ii.  808. 
citizens  of  different  states,  ii.  808. 
aliens,  ii.  809. 
assignees,  ii.  809. 
inhabitants,  ii.  810. 

Vol.  X.— 87  3m  2 


690  GENERAL   INDEX. 

Parties  to  actions  of  trespass,  plaintiffs,  ix.  452. 

defendants,  ix.  494. 
who  may  be  joined,  ix.  499. 
in  trover,  plaintiffs,  ix.  640. 
defendants,  ix.  657. 
replevin,  executor,  viii.  551. 

feme  covert,  viii.  551. 
servant,  viii.  552. 
tenant  in  common,  viii.  552. 
equitable  owner,  viii.  552. 
bailee,  viii.  553. 
father,  viii.  553. 
number  of,  viii.  552. 
an  avowry,  who  are  to  be,  viii.  563. 
to  a  scire  facias,  who  must  be,  viii.  618. 
on  the  case,  who  may  be,  i.  66,  103,  105. 
when  husband  and  wife,  must  join,  ii.  37,  61. 

be  joined,  ii.  55. 
may  sue  alone,  ii.  54. 
privileges  of,  viii.  170. 

consent  of,  does  not  give  jurisdiction,  ii.  618. 
may  be  attached  for  contempt,  when,  i.  469;_ 
who  must  be  made  to  redeem  a  mortgage,  vii.  95. 
idiots  cannot  be,  v.  47. 
may  be  witnesses,  when,  iii.  475,  477,  482. 
contracts,  who  may  be,  i.  154 ;  -vii.  246._ 

churchwardens,  i.  156. 
father,  i.  155. 
infants,  i.  154. 

persons  non  compos,  cannot  be,  i.  154. 
slave,  i.  154. 
tenant  in  tail,  i.  155. 
wife,  i.  154. 
agents,  i.  157. 
solicitor,  i.  157. 

managers  of  a  corporation,  i.  158. 
corporations,  i.  158. 
a  state,  i.  158. 

wife  cannot  be,  when,  ii.  54,  55. 
covenants,  ii.  560. 

when  covenantees,  ii.  560. 
joint  and  several,  ii.  561. 
when  one  dies,  effect  of,  ii.  563. 
made  by  one  to  a  class,  ii.  563. 
a  submission,  who  may  be,  i.  313. 
an  obligation,  vii.  246. 
when  the  act  of  one  will  excuse  the  non-performance  of  conditions  by  the 

other,  ii.  338. 
a  set-off,  v.  649. 

agents,  v.  649. 
factors,  v.  649. 
insurance  brokers,  v.  649. 
husband  and  wife,  .v.  649. 
one  of  several  partners,  v.  650. 
assignee,  v.  650. 
trustee,  v.  651. 
plaintiff  on  record,  v.  655. 
bank,  v.  656. 
executors,  v.  656. 
surviving  partner,  v.  657. 
Partition  among  coparceners,  ii.  358. 

of  what  it  may  be  made,  ii.  358. 

writ  of,  ii.  36  \. 

by  hotchpot,  ii.  364. 

parol  and  unexecuted,  when  void,  ii.  361. 


GENERAL  INDEX. 

Partition,  nature  of  coparcenary  estate  after,  ii.  366. 

implies  a  warranty,  ii.  367.  • 

by  infants,  when  avoidable,  v.  129. 
destroys  joint-tenancy,  v.  283. 
must  be  by  deed,  -when,  v.  283. 
parol,  when,  v.  283. 
may  be  made,  when,  v.  290. 

by  joint-tenants,  v.  290. 

tenants  in  common,  v.  290. 

by  the  curtesy,  v.  291. 
owner  of  the  equity  of  redemption,  v.  291. 
equitable  owner,  v.  296. 
Partners,  who  are,  vi.  573. 

interest  of,  vi.  574. 
action  by  one,  vi.  575. 
authority  of  one,  vi.  574,  575,  580,  583. 
participation  in  profits  makes,  vi.  578. 
permitting  name  to  be  used  makes,  vi.  579. 
dormant,  how  far  liable,  vi.  579. 
cannot  bind  co-partner  by  seal,  vi.  581,  584. 
one  can  draw  and  endorse  bills,  vi.  581. 
liable  when  credit  is  given  to  the  firm,  vi.  582. 
effect  of  private  contracts  between,  vi.  582. 
fraud  of  one  affects  all,  vi.  582. 

requisites  of  bill  against  executors  of  deceased,  vi.  583. 
when  note  of  firm,  not  binding  on,  vi.  583. 
rights  of,  to  partnership  property,  vi.  585. 
effect  of  execution  against  one,  vi.  585. 
rights  of  surviving,  vi.  580. 
payment  to  one  of  several,  good,  vi.  585. 
when  to  account,  vi.  586. 
admission  of,  when  evidence,  iii.  558. 
bankrupt,  i.  786,814. 

paying  private  debts  out  of  partnership  funds,  when  fraudulent,  iv.  387. 
when  restrained  by  injunction  from  disposing  of  joint-stock,  v.  200. 
Partnership,  what,  vi.  573. 

how  constituted,  vi.  573. 
effect  of  dissolution  of,  vi.  582. 
general  reputation  no  evidence  of,  vi.  579. 
funds,  who  is  entitled  to,  vi.  581. 
purchase  of  effects  of,  vi.  586. 
debts  to  be  paid  out  of  effects  of,  vi.  587. 
slarfder  against,  vi.  346,  347. 
when  not  allowed  to  insure,  vi.  638. 
injunction  lies  to  prevent  dissolution  of,v.  200. 
Party  wall,  when  a  covenantor  is  bound  to  pay  for,  ii.  579. 

law  relating  to,  in  London,  iii.  39. 
Passport,  efficacy  of,  vi.  731. 
Pasture,  common  of,  ii.  260. 

Patent,  who  entitled  to,  viii.  131,  132,  133 ;  vii.  419. 
for  what  granted,  viii.  132,  136. 
effect' of,  viii.  132,  133. 
surrender  of,  viii.  133. 
action  for  violation  of  right  to,  viii.  133. 
what  is  a  violation  of  right  to,  viii.  134. 
construction  of,  viii.  149. 
damages  for  violation  of  right  of,  iii.  82. 
Pauper,  when  entitled  to  sue  in  forma  pauperis,  vii.  420. 

whether  defendant  can  defend  in  f or  mO,  pauperis,  vii.  421. 
when  admitted  to  defend  in  formd  pauperis,  vii.  422. 
in  what  cases  dispaupered,  vii.  422. 
costs  against,  ii.  524. 
Pawn,  what,  i.  608. 

may  be  sold,  when,  i.  611,  613. 
delivery  of,  when  requisite,  i.  612. 


692  GENERAL  INDEX. 

Pawn,  difference  between  mortgage  and,  i.  612. 
when  it  may  be  redeemed,  i.  613. 
when  assignees  of  bankrupt  may  redeem,  i.  613. 
Pawnbroker  may  be  indicted  for  not  delivering  pledge,  i.  614. 
Pawnee,  rights  of,  i.  618. 

has  a  special  property  in  the  goods  pledged,  i.  625. 
may  use  the  pawn,  when,  i.  625. 
Pawnor,  when  entitled  to  property  pawned,  i.  610,  613. 

must  demand  the  pledge  before  action  brought  for  its  recovery,  i.  607. 
Payment  made  in  counterfeit  bank-notes  not  valid,  i.  412. 
of  money  on  a  pledge,  when  to  be  made,  i.  611. 
v  when  presumed,  iii.  618  ;  vii.  275  ;  vi.  376 ;  viii.  512, 

what  debts  are  first  entitled  to,  vii.  262. 
when  appropriation  of,  to  be  made,  vii.  262. 
of  money  into  court,  effect  of,  ix.  346. 
plea  of,  vii.  265. 

to  assignor  of  a  bond,  when  valid,  viii.  272. 
what  is  tantamount  to,  vi.  833. 
•  of  a  legacy,  effect  of  postponement  of,  vi.  263. 

effect  of  union  of  gift  and  time  of,  vi.  264. 
how  to  be  made,  vi.  305. 
when  presumed,  vi.  306. 
to  infant,  effect  of,  vi.  307. 
a  father  for  child,  vi.  308. 
a  feme  covert,  vi.  309. 
husband,  vi.  309,  311. 
committee  of  lunatics,  vi.  311. 
assignee  of  bankrupt,  vi.  312. 
when  to  be  made,  vi.  312. 
of  rent,  effect  of,  viii.  512. 

time  of,  viii.  460,  466,  512. 
place  of,  viii.  512. 
presumption  of,  viii.  512. 
effect  of  payment  of,  to  a  stranger,  viii.  512. 
who  entitled  to,  viii.  512,  513. 
how  apportioned,  viii.  513. 
to  joint-tenant,  effect  of,  viii.  513. 
tenant  in  common,  effect  of,  viii.  513. 
Peace,  what,  viii.  67. 

kinds  of,  viii.  67. 
Peculiars,  court  of,  ii.  720. 
Pecuniary  legacies,  what,  vi.  290.     See  Legacy. 
test  of,  vi.  292. 
abate,  vi.  292. 
penalties  for  smuggling,  ix.  140.     See  Penalties. 
Peers  entitled  to  privilege  from  arrest,  viii.  183. 

serving  on  jury,  viii.  189. 
letter  missive,  viii.  189. 
other  privileges,  viii.  189. 
may  be  outlawed,  vii.  331. 
Penal  statute,  how  construed,  ix.  252. 

limitation  of  action  on,  vi.  371. 
action,  when  a  new  trial  will  be  granted  in  a,  ix.  626. 
Penalties  and  forfeitures  incurred  by  smuggling,  ix.  140. 
for  ships  hovering  on  the  coast,  ix.  141. 

not  proceeding  on  voyage,  with  contraband  goods,  ix.  141. 

having  spirits,  tobacco,  or  snuff,  in  illegal  packages  in  ship,  ix.  141. 

throwing  goods  overboard  in  a  chase,  ix.  143. 

having  contraband  goods  on  board  near  Guernsey,  ix.  144. 

sailing  without  a  clearance  from  Guernsey,  ix.  145. 

hoisting  falsi;  Bags,  ix.  140. 

unshipping  prohibited  goods,  ix.  147. 

making  signals  to  smugglers,  ix.  148. 

resisting  revenue  officer,  ix.  149. 

concealing  goods  on  double  sides  or  false  bottoms,  ix.  150. 


GENERAL   INDEX.  693 

Penalties  pecuniary,  for  smuggling,  ix.  140. 
corporal,  for  smuggling,  ix.  152. 
for  shooting  at  boats  belonging  to  navy,  153. 

persons  armed  or  disguised,  passing  with  goods  liable  to  forfeiture,  ix. 
153. 
declaration  on,  vii.  264. 

whether  damages  may  be  recovered  beyond  the,  vii.  239. 
Pencil,  a  will  may  be  written  with  a,  x.  490. 
Pendency  of  suit  in  another  state,  plea  of,  vii.  635. 
Penetration,  what,  ix.  158. 
Pensions,  king  authorized  to  grant,  viii.  121. 
Per  capita,  who  takes,  vi.  178. 
stirpes,  who  takes,  vi.  178. 

infortunium,  homicide,  when  justified,  vii.  184,  211. 
Peremptory  challenge,  when  allowed,  v.  362. 

mandamus,  when  awarded,  vi.  452.     See  Mandamus. 
Performance  of  condition,  by  whom  it  may  be  made,  ii.  319. 

to  whom,  ii.  321. 
when,  ii.  323. 
where,  ii.  328. 
when  sufficient,  ii.  330. 
by  a  stranger,  when  good,  ii.  341. 
what  is  a  good,  of  covenant,  ii.  592. 
of  agreement,  how  enforced,  i.  169,  191. 
when  to  be  averred  in  a  declaration,  vii.  485. 
what  is  a  good  plea  of,  iL  605  ;  vii.  266. 
Performavit  omnia,  effect  of  plea  of,  vii.  265. 
Peril  of  the  sea,  what,  vi.  662. 
Perishable  articles,  what,  vi.  676. 

when  to  be  sold,  viii.  299. 
Perjury,  what,  vii.  424. 

subornation  of,  vii.  424. 
at  common  law,  vii.  424. 
requisites  of,  vii.  424. 

oath  must  bo  wilful,  vii.  424. 

in  a  judicial  proceeding,  vii.  425. 
before  some  lawful  authority,  vii.  425. 
by  a  person  sworn  to  depose  the  truth,  vii.  425. 
material,  vii.  425,  426. 
absolute,  vii.  425. 
false,  vii.  425. 

not  required  that  it  should  be  credited,  vii.  426. 
voluntary  oath,  is  not,  vii.  427. 
how  punished  by  statute,  vii.  428, 

indictment  on,  vii.  429. 
by  act  of  Congress,  vii.  433. 
how  charged  and  assigned,  vii.  433. 
false  charge  of,  when  actionable,  ix.  34. 
Permissive  waste,  what,  x.  422. 
Person,  meaning  of,  x.  126. 

when  an  action  lies  for  an  injury  to  the,  ix.  452. 
Persona  mixta,  who  is  a,  x.  26. 
Personal  actions  die  with  the  person,  when,  iv.  133. 

when  not,  iv.  140. 
covenants,  how  to  be  performed,  ii.  564. 
estate,  what,  iv.  72. 
liable  to  pay  debts,  when,  iv.  115. 

a  term  for  985  years  will  pass  under  a  bequest  of,  vi.  192. 
estate  of  wife,  vests  in  the  husband,  ii.  16,  21. 
primarily  liable  for  owner's  debts,  vii.  72. 
mortgages  of,  vii.  180. 

property,  trespass  lies  for  an  injury  to,  ix.  453  472. 
representatives  may  distrain,  when,  iii.  165. 
statutes,  what,  ix.  212. 
tithes,  who  is  liable  to  pay,  x.  9.     See  Tithes. 


694  GENERAL   INDEX. 

Personal  tithes,  what,  x.  9. 

how  paid,  x.  39. 
Persuasion  of  a  testator,  effect  of,  x.  487. 
Petit  serjeantry,  tenure  by,  ix.  376. 
treason,  what,  ix.  380. 

of,  in  general,  ix.  416. 

slaying  a  husband  by  his  wife  is,  ix.  418. 

prelate  by  an  ecclesiastic,  is,  ix.  419. 
Petition  to  general  assembly  not  libellous,  vi.  345. 

the  delivery  of,  to  members  of  parliament  is  not  a  publication,  vi.  358. 
de  droit,  what,  viii.  107. 
when  slanderous,  ix.  65. 
not,  ix.  65. 
Petitioning  creditor  of  bankrupt,  who  is  a,  i.  659,  801. 
Petty  bag,  what,  ii.  683. 
Physician,  when  guilty  of  murder,  vii.  187,  204. 

what  is  a  slander  of,  ix.  48. 
Pictures  considered  as  furniture,  when,  vi.  193. 
Pigeons  ureferce  naturae,  vii.  226. 
Pignus,  what,  vii.  28. 

Pilot,  how  far  a  servant  of  owner  of  a  ship,  vi.  539. 
Pipowders,  court  of,  ii.  789. 
Piracy,  what,  vii.  439,  441. 

how  punished,  vii.  443. 
corruption  of  blood  consequent  on,  vii.  444. 
Pirate,  meaning  of,  vii.  441. 
Piratical,  meaning  of,  vii,  440. 
Piscaria,  effect  of  grant  of,  iv.  530. 
Pischary,  what,  vii.  452.     See  Fishery. 
common  .of,  vii.  452  ;  ii.  261. 
Place  where  condition  may  be  performed,  ii.  328. 
distress  may  be  made,  iii.  176. 
how  to  be  set  out  in  an  indictment,  v.  79. 
where  offence  is  committed,  vi.  358,  359. 
of  publication  of  a  libel,  vi.  358,  359. 
where  rent  must  be  demanded,  viii.  487. 
Plantation,  what  passes  under  a  devise  of  a,  vi.  194. 
Plate  considered  furniture,  when,  vi.  193. 
Play,  money  lost  at,  cannot  be  recovered,  iv.  460. 

when  paid,  cannot  be  recovered  back,  iv.  460. 
Players,  unlicensed,  how  punished,  vii.  224. 
Pleas,  meaning  of,  vii.  458. 
kinds  of,  vii.  526. 

in  abatement,  i.  31 ;  ix.  514.     See  Abatement. 
how  pleaded,  i.  35. 

difference  between  a  plea  in  bar  and  a,  i.  36. 
dilatory,  how  restrained,  i.  33. 
in  bar,  vii.  531.     See  Bar. 

must  be  proper,  vii.  579. 

good  in  substance,  vii.  586. 
direct,  vii.  606. 

according  to  operation  of  law,  vii.  610. 
to  the  jurisdiction,  vii.  526.     See  Jurisdiction. 
sham,  vii.  530. 
foreign,  what,  i.  40. 
construction  of,  vii.  460. 
colour  of,  vii.  613. 
hors  de  son  fait,  what,  vii.  617. 
profert,  when  required  in,  vii.  623. 
of  former  recovery,  vii.  633. 
tender,  vii.  640. 
justification,  vii.  640. 
amendment  of,  vii.  641. 
when  to  be  entered,  vii.  676. 
of  accord  and  satisfaction,  when  good,  ii.  614 ;  i.  60,  61. 


GENERAL   INDEX.  695 

Pleas  of  set-off,  when  proper,  ii.  614. 
to  awards,  what,  i.  348. 
in  assumpsit,  what,  i.  459. 
covenant,  ii.  609. 

nil  Jiabuit  in  tenementis,  when  proper,  ii.  609. 
non  est  factum,  when  proper,  ii.  611. 
non  infringit  conventionem,  when  proper,  ii.  611. 
set-off,  when  proper,  ii.  614. 
formedon,  what,  iv.  379. 
puis  darrein  continuance,  what,  vii.  685. 

when  to  be  put  in,  vii.  685,  688. 
effect  of,  vii.  685,  688. 
cannot  be  rejected,  when,  vii.  687. 
in  replevin,  requisites  of,  viii.  556. 
trespass,  ix.  514. 

in  abatement,  ix.  514. 
chief,  ix.  515. 

general  issue,  ix.  515. 
a  special,  ix.  516. 

both  the  general  issue  and  a  special,  ix.  527. 
trover,  ix.  672. 
of  the  act  of  limitations,  what,  vi.  404. 
roll,  how  amendable,  i.  243. 
Pleaders,  fines  imposed  on,  vii.  458. 
Pleading,  meaning  of,  vii.  457.     Vide  Pleas. 
formerly  ore  terms,  vii.  458. 

in  the  Latin  tongue,  vii.  458. 
rules  respecting,  vii.  458,  459. 
defects  in,  how  cured,  vii.  459. 
effect  of  surplusage  in,  vii,  460,  601. 
several  parts  of,  vii.  462. 
order  of,  vii.  462,  463. 
rules  to  avoid  prolixity  in,  vii.  591. 
of  negative  pregnant  in,  vii.  608. 
estoppels  in,  vii.  618. 
profert,  when  required  in,  vii.  623. 
duplicity  in,  vii.  642.     See  Duplicity. 
departure  in,  vii.  651. 
repleader,  what,  vii.  657.     See  Repleader. 
demurrer,  what,  vii.  662.     See  Demurrer. 
in  actions  for  words,  ix.  84. 
a  statute,  how,  ix.  260,  263. 

tender  how,  ix.  332.     See  Tender, 
uncore  prist,  when  proper,  ix.  334. 

with  tout  temps  prist,  when  proper,  ix.  335. 
with  a  profert  in  curia,  effect  of,  ix.  337. 
in  actions  of  ti'espass,  ix.  501. 
giving  colour,  ix.  529.     See  Colour. 
replication,  ix.  530.     See  Replication. 
new  assignment,  ix.  535. 

in  detinue,  what,  iii.  136.  <  ... 

when  false,  renders  executors  liable  de  bonis  proprus,  iv.  11». 
to  a  scire  facias,  viii.  624. 
Pledge,  what,  i.  608 ;  vii.  28. 

when  it  may  be  redeemed,  i.  613.  . 

by  assignees  of  bankrupt,  i.  old. 

by  factor,  effect  of,  vi.  566. 
*    in  replevin,  when  to  be  taken,  viii.  532. 
kinds  of,  viii.  532. 
Plene  administravit,  plea  of,  iv.  120. 

finding  of  jury  on,  iv.  122. 
cannot  be  withdrawn,_  when,  iv.  122. 
,  judgment  on  plea  of,  iv.  122. 

good  plea  to  a  scire  facias,  iv.  123. 
computavit,  plea  of,  i.  51. 
Poisoning,  who  is  guilty  of  murder  by,  vii.  188. 


696  GENERAL   INDEX. 

Policies  of  insurance,  vi.  637.     See  Insurance. 
valued,  vi.  637. 
open,  vi.  637. 
wager,  vi.  707,  711. 
Political  rights  of  married  women,  ii.  16. 
Ponderous  articles,  how  to  be  tendered,  ix.  320. 
Pontage,  king  may  grant,  viii.  114. 
Poor,  legacy  to  the,  how  distributed,  ii.  198. 

relations,  who  take,  under  bequest  to,  vi.  187. 
Pope,  former  power  of  the,  viii.  56. 

license  of,  when  evidence,  iii.  576. 
bull  of,  when  evidence,  iii.  577. 
Popery,  oifence  of  not  making  declaration  against,  vii.  376.  ( 

Popish  recusancy,  a  good  plea  in^  abatement,  i.  4. 
recusants,  who  are,  vii.  370. 

how  punished,  vii.  370. 
disabilities  of,  vii.  371. 

cannot  sue,  vii.  372. 

hold  office,  vii.  372. 

claim  any  part  of  husband's  estate,  vii.  372. 
an  estate  by  curtesy,  vii.  373. 
restraints  on,  vii.  373. 

cannot  go  five  miles  from  home,  vii.  373. 
keep  firearms,  vii.  374. 
come  within  ten  miles  of  London,  vii.  374. 
forfeitures,  vii.  374. 

jointure  or  dower,  vii.  374. 
for  unlawful  marriage,  vii.  375. 

not  receiving  sacrament,  vii.  375. 
omitting  baptism,  vii.  375. 
unlawful  burial,  vii.  375. 
inconveniences,  they  are  subject  to,  vii.  375. 

houses  may  be  searched,  vii.  375. 
to  married  women,  vii.  376. 
Port,  what,  vi.  649,  650;  viii.  25. 
of  delivery,  what,  vi.  603. 
destination,  what,  vi.  603. 
Porters  are  common  carriers,  ii.  151. 
Portions,  devise  for  payment  of,  vi.  83  _ 

when  satisfied  by  a  legacy,  vi.  235.  ' 

Posse  comitatiis,  authority  of  sheriff  to  raise  the,  viii.  695. 
Possessio  fratris,  what,  iii.  107. 

rule  of  does  not  apply  to  the  English  king,  vm.  85. 
Possession,  when  it  is  required  to  make  ^assignee  liable  for  rent,  ii.  570,  oil. 
when  evidence  of  property,  iii.  619,  620. 
required  to  constitute  forcible  entry  and  detainer,  iv.  327. 
peaceable,  what,  iv.  328. 
scrambling,  what,  iv.  328. 

want  of,  when  a  badge  of  fraud,  iv.  406,  407,  409,  416. 
injunction  lies  for  quieting,  v.  204. 
remains  in  the  lessor,  when,  y.  632. 
what  sufficient  to  give  title,  vi.  370. 
of  tenants  in  common,  effect  of,  vi.  370. 

joint  tenants,  effect  of,  vi.  370,  371. 
deed  by  person  out  of,  void,  vi.  417. 
mortgagee  of  goods  must  have,  vii.  181. 
grant  presumed  from  length  of,  viii.  94. 
not  required  to  rapport  replevin,  viii.  552.  > 
when  plaintiff  in  trespass  must  have  had,  ix.  454. 
Possessory  actions,  limitation  of,  vi.  364.  _  t 

Possibilities  of  bankrupt,  when  they  pass  to  his  assignees,  l.  i  ZZ. 
Possible,  award  must  be  of  a  thing,  i.  339. 
Post  fine,  what,  iv.  248. 

mark,  effect  of,  vi.  644. 
obit,  not  usurious,  x.  286. 
Posterity,  meaning  of,  vi.  144. 


GENERAL  INDEX.  C97 

Posthumous  children,  to  what  entitled,  x.  507. 

Postponement,  when  payment  is  postponed,  effect  of  such,  vi.  263. 

Poundage,  when  allowed,  iv.  168. 

duty  of,  ix.  120,  125. 
Power  of  attorney,  what,  i.  489. 

appointment,  effect  of  a  bequest  with,  vi.  268. 
churchwardens  over  church  property,  ii.  2-41. 
sale  under  a  mortgage,  vii.  31. 
is  a  vested  interest,  vii.  32. 
a  statute,  ix.  228. 
revocation  of  uses,  x.  160. 
relating  to  lands,  what,  x.  160 

is  appendant,  x.  160. 
in  gross,  x.  160. 
of  cestui  que  trust,  x.  258. 

bankrupt  when  they  pass  to  his  assignees,  i.  722. 
executors,  when  limited,  iv.  37. 

greater  than  testator's,  v.  124. 
leases  made  pursuant  to,  when  good,  v.  575. 
Prayee  in  aid,  when  parol  shall  demur  for,  v.  165 
Praecipe  and  concord,  what,  iv.  247. 
Prcemunire,  what,  vii.  690. 

statutes  of,  vii.  690. 

when  made,  ii.  645. 
offences  of,  vii.  690. 
punishment  of,  vii.  693. 
a  good  plea  in  abatement,  i.  4. 
Preamble  of  a  statute,  effect  of,  ix.  219,  241. 
Prebendaries,  who  are,  v.  479. 

power  to  make  leases,  v.  480. 
Precedency  among  mortgagors  as  to  the  right  to  redeem,  vii.  89. 
Precedent  condition,  what,  ii.  291. 

distinction  between  subsequent  and,  ii.  292. 
remainders  that  arise  on,  viii.  380. 
Predial  tithes,  what,  x.  11.     See  Tithes. 

how  set  out,  x.  39. 
Preferences  in  a  voluntary  assignment,  when  lawful,  i.  388. 
made  by  bankrupt,  how  far  valid,  i.  733,  803. 
United  States  entitled  to,  i.  809. 
sureties  when  entitled  to,  i.  809. 
when  fraudulent,  iv.  395. 
Pregnancy,  duration  of,  ii.  84. 
signs  of,  ii.  86,  87. 
Premises,  meaning  of,  vi.  140. 

in  a  deed,  what,  iv.  212,  213. 

effect  of,  iv.  529. 
effect  of  habendum  on,  iv.  213. 
Premium,  return  of,  vi.  736. 

pudicitke,  bond  given  for,  void,  vii.  260. 
Premunientes  clause,  when  first  introduced,  ii.  639. 

what  it  is,  ii.  642. 
Prorogation  of  parliament,  how  made,  ii.  675. 

consequences  of,  ii.  676. 
Prerogative,  meaning  of,  viii.  5. 
etymology  of,  viii.  5. 
effect  of,  viii.  5. 
when  to  be  allowed,  viii.  8. 
division  of  the  subject  of,  viii.  9. 
of  king  as  universal  applicant,  viii.  13. 
in  cases  of  escheats,  viii.  15. 

seas  and  navigable  rivers,  viii.  18. 
swans  and  royal  fish,  viii.  24. 
ports  and  havens,  viii.  25. 
beacons  and  lighthouses,  viii.  33. 
wrecks,  viii.  34. 

Vol.  X.— 88  3  N 


698  GENERAL  INDEX. 

Prerogative  of  king  in  coins,  viii.  37. 

mines,  viii.  37. 
derelict  goods,  viii.  41. 
fines  and  forfeitures,  viii.  44. 
over  persons  of  his  subjects,  viii.  45. 
as  the  fountain  of  justice,  viii.  55. 
in  ecclesiastical  matters,  viii.  5G. 
creating  offices,  viii.  60. 
making  war  or  peace,  viii.  62. 
as  parens  patrice,  viii.  65. 
in  granting  dispensations,  viii.  66. 
pardons,  viii.  66. 
court,  what,  ii.  719. 
Prescription,  limit  of,  vi.  364. 

non  decimando,  what,  x.  63. 
Present  demise,  what  amounts  to  a,  v.  608. 
Presentation  to  the  livings  of  papists,  when  to  he  made,  x.  107. 

to  whom  to  he  made,  x.  109. 
how  the  right  of,  may  be  prevented,  x.  108. 
proceedings  in  equity,  relating  to,  x.  109. 
how  right  of,  may  be  divested,  x.  110. 
Presentment  of  a  grand  jury,  what,  v.  48. 

is  traversable,  v.  48. 
not  libellous,  vi.  348. 
by  churchwardens,  what,  ii.  244. 
of  a  bill,  what,  vi.  821. 

when  to  be  made,  vi.  821. 
to  surviving  partner,  effect  of,  vi.  819. 
Press  soldiers,  king  may,  viii.  63. 
Presumption  of  payment,  when,  vii.  275. 

destroyed  by  an  admission  within  twenty  years,  vii.  275. 
payment  of  interest,  vii.  275. 
endorsement  of  credit  by  obligee,  vii.  275. 
showing  inability  of  debtor,  vii.  275. 
insolvency  of  debtor,  vii.  275. 
the  fact  that  parties  are  near  relations,  vii.  276, 
the  absence  of  the  debtor,  vii.  276. 
continued  absence  of  creditor,  vii.  276. 
Presumption,  what,  iii.  617. 

division  of,  iii.  617,  618. 
from  lapse  of  time,  iii.  621. 
of  life,  what,  iii.  622. 
death,  what,  iii.  622. 
innocence,  what,  iii.  625. 
Presumptive  payment  of  a  legacy,  what,  vi.  306.     See  Payment. 
Pretences,  effect  of  false,  iv.  381. 
Pretender,  offence  of  corresponding  with  the,  ix.  416. 
Priest,  who  takes  under  a  becpiest  to  a,  vi.  190. 

marriage  before  a,  when  good,  vi.  463. 
Prima  tonsurd,  ejectment  lies  for,  iii.  272. 
Prvmwm  decretum,  effect  of,  ii.  747. 

Principal,  money,  may  be  spent  in  education  of  a  legatee,  when,  vi.  323. 
chief,  agents  and  factors,  vi.  557. 

when  bound  by  their  agents,  vi.  560,  561. 
responsible  for  agent's  acts,  vi.  564. 
not,  vi.  565. 
may  sue  on  note  to  agent,  vi.  835. 
and  surety,  liability  of,  vii.  257. 
in  trespass,  who  are,  ix.  499. 
process  of  outlawry  against,  vii.  334. 
Printers,  when  they  may  be  attached  for  contempt,  i.  471. 
Printing,  grants  of  liberty  of,  viii.  141. 
Priority,  what  mortgage  has  a,  vii.  129,  133. 

when  two  mortgages  an-  given  simultaneously,  neither  has  a,  vii.  133. 
redemption  will  be  decreed  according  to  the,  of  mortgagees,  vii.  156. 
Priority  of  execution,  effect  of,  iii.  705  ;  viii.  707. 
Prisagi\  what  ix.  118. 


GENERAL    INDEX.  699 

Prisage,  wines  liable  to  duty,  ix.  123. 
Prison,  what,  iv.  463.     See  Gaol  and  Jail. 
breaking,  what,  iv.  487. 

when  felony,  iv.  179,  187. 
to  what,  offenders  may  be  committed,  ii.  250. 
books,  when  evidence,  iii.  580. 
Prisoner,  when  regularly  committed,  iii.  392. 
how  to  be  kept,  iii.  398  ;  iv.  483. 
at  whose  charge  to  be  carried  to  prison,  iv.  483. 
when  to  pay  the  charge  of  being  taken  to  prison,  ii.  258. 
how  discharged,  ii.  259. 

disposed  of  on  a  habeas  corpus,  iv.  589. 
slave  considered  a,  vi.  389. 

act  of  limitations  does  not  run  against  a,  vi.  389. 
Private  property  can  be  taken  only  for  public  use,  ix.  230. 
statutes,  what,  ix.  230. 

effect  of,  ix.  231. 
how  pleaded,  ix.  261. 
bills,  what,  ix.  231. 
Privies  in  blood,  may  avoid  acts  of  non-compos,  v.  27. 

to  a  fine,  when  barred,  iv.  262. 
Privilege,  what,  viii.  158. 

who  entitled  to,  viii.  158,  173. 
what  officers  entitled  to,  viii.  164. 
allowed  to  persons  attending  court,  viii.  168. 
sheriff  not  bound  to  take  notice  of,  viii.  169. 
in  what  cases  allowed,  viii.  172,  187. 
how  claimed,  viii.  174. 
allowed,  viii.  174. 
pleaded,  viii.  174. 
persons  entitled  to,  how  to  sue  and  be  sued,  viii.  180. 
whether  there  can  be  a  privilege  against,  viii.  181. 
of  peers,  viii.  183. 

members  of  parliament,  viii.  183,  187. 
Congress,  viii.  183. 
Assembly,  viii.  183. 
state  convention,  viii.  183. 
servants  of  members  of  parliament,  viii.  185. 
foreign  ministers,  viii.  187. 
ambassador  and  his  servants,  viii.  187. 
attorneys,  i.  505. 
commencement  of,  viii.  190. 
how  to  be  taken  advantage  of,  viii.  193. 
what  is  a  breach  of,  viii.  196. 

proceedings  in  court  by  and  against  persons  entitled  to,  viii.  197. 
ought  to  be  pleaded  in  abatement,  i.  5. 

effect  of  defendant's,  to  save  the  bar  of  the  act  of  limitations,  vi.  395. 
Privileged  persons,  when  execution  may  issue  against,  iii.  721. 
communications,  what,  vi.  344. 

not  libellous,  vi.  343,  344, 
Privity  of  contract,  what  required  in  actions  of  assumpsit,  i.  402. 
Privy  seal,  how  awarded,  viii.  53. 

verdict,  what,  x.  308. 
Prize  court,  what,  ii.  734. 

when  property  is  changed  by,  ii.  745. 
suits  are  of  admiralty  jurisdiction,  ii.  815. 
Probable  cause  to  justify  a  seizure,  what,  viii.  30. 
what  is,  viii.  105. 

consequence  of  seizing  goods  without,  viii.  105. 
no  warrant  ought  to  be  issued  without,  ii.  253. 
Probate  of  wills,  to  whom  it  belongs,  iv.  43. 

when  granted  in  peculiar  jurisdiction,  iv.  49. 
by  king,  iv.  45. 

archbishop,  iv.  45. 
lords  of  manors,  iv.  49. 
what  executor  may  do  before,  iv.  63. 


700  GENERAL   INDEX. 

Probate  of  wills,  of  soldiers,  how  made,  ix.  191. 
Probi  et  legales  Jiomines,  who  are,  vi.  311. 
Proceedings  at  law,  when  restrained  by  injunction,  v.  203. 
form  of,  in  the  Court  of  Exchequer,  ii.  705. 
constable's  court,  ii.  709. 
justices  of  oyer  and  terminer,  ii.  712. 
sheriff's  tourn,  ii.  773. 
in  cases  of  insurance,  vi.  739. 
Process,  what,  i.  227. 

jury,  what,  v.  314. 

when  amendable,  i.  243. 
several  kinds  of,  v.  316. 
by  whom  to  be  executed,  v.  318. 
when  returnable,  v.  327. 
by  proviso,  what,  v.  332. 
in  United  States  courts,  form  of,  ii.  822. 
actions  of  waste,  form  of,  x.  451. 
Prochein  ami,  when  liable  for  costs,  v.  145. 

may  call  guardian  to  account,  v.  145. 
infant  may  appear  by,  v.  148. 
must  be  appointed  before  suing  process,  v.  149. 
courts  will  inquire  into  motives  of,  v.  152. 
may  appear  for  infant  who  is  married,  ii.  61. 
make  partition,  ii.  362. 
Proclamation,  effect  of,  ix.  217. 

English  king's,  viii.  79. 
by  whom  to  be  made,  viii.  80. 
when  unlawful,  viii.  80. 
Proctor  is  not  an  officer,  vi.  426. 
Proditorie,  when  required  in  an  indictment,  v.  68. 
Profert  in  curia,  when  proper,  ix.  337. 

dispensed  with,  vii.  624. 
not  required,  vii.  624,  625. 

of  lost  bond,  vii.  627. 
of  deed,  when  required,  iii.  585. 

not  required,  iii.  586,  592. 
consequences  of,  ix.  338. 
how  to  be  assigned,  vii.  625,  261. 
of  letters  of  administration,  when  required,  iv.  131. 
Profits  are  not  considered  an  advancement,  iv.  98. 

receipt  of  partnership,  makes  one  liable  as  a  partner,  vi.  576. 
difference  between  gross  earnings  and,  vi.  579. 
may  be  insured,  vi.  640. 
a  prendre,  what,  viii.  23. 
Progression,  what,  x.  533. 
Prohibited  goods,  offence  of  smuggling,  ix.  134. 

what  are,  ix.  135. 
Prohibition,  what,  viii.  206. 

object  of,  viii.  207. 

what  courts  may  grant  writs  of,  viii.  207. 

King's  Bench,  viii.  207. 
Chancery,  viii.  207. 
Supreme  Court,  viii.  209. 
Circuit  Court,  viii.  209. 
when  granting  a  writ  of,  is  discretionary,  viii.  209. 
who  may  demand  a  writ  of,  viii.  210. 
who  may  be  joined  in  a  writ  of,  viii.  211. 
costs  in  cases  of,  viii.  217,  219. 
when  granted  absolutely,  viii.  221. 

quousqvc,  viii.  221. 
form  of  declaration  in,  viii.  222. 
number  of,  viii.  223. 
time  when  to  be  granted,  viii.  224. 
to  what  courts  awarded,  viii.  22('». 

inferior  temporal  courts,  when  granted,  viii.  230. 
spiritual  court,  when  granted,  viii.  233  ;  x.  79. 


GENERAL   INDEX.  701 

Prohibition  to  spiritual  court,  when  they  meddle  with  a  temporal  matter,  viii.  233. 

determine  on  matter  of  freehold,  viii.  236. 
criminal  offence,  viii.  237. 
on  acts  of  parliament,  viii.  238. 
have  concurrent  jurisdiction,  viii.  239. 
offence  of  disobeying  a,  viii.  244. 
against  churchwardens,  when  granted,  ii.  247. 
lies  to  a  suit  in  spiritual  court,  when,  ix.  103. 

for  subtraction  of  tithes,  x.  79. 
Prolixity,  effect  of,  vii.  591. 

rules  as  to,  vii.  591. 
Promise  by  executor  to  pay  testator's  debt,  effect  of,  i.  172 ;  iv.  123. 
when  binding,  i.  172. 

to  perform  covenant  of  testator,  effect  of,  i.  417. 
heir  to  pay  ancestor's  debt,  effect  of,  iv.  628. 
to  pay  the  debt  of  another,  when  valid,  i.  173. 
of  infant,  a  good  consideration,  i.  424.     See  Infancy,  Infant. 
made  upon  consideration  of  marriage,  good,  i.  176. 
conditional,  hpw  fulfilled,  i.  415. 
must  be  certain,  i.  415,  416. 

mutual  and  simultaneous,  i.  420. 
of  bankrupt,  effect  of,  i.  808. 
effect  of,  on  act  of  limitations,  vi.  384. 
to  accept  a  bill,  effect  of,  vi.  800,  806. 
Promissory  notes,  what,  vi.  769. 

effect  of  loss  of,  vi.  792. 
Promulgation  of  a  statute,  how  made,  ix.  218. 
Properties  of  an  estate  in  use,  x.  113. 

it  is  alienable  at  common  law,  x.  113. 
by  statute,  when,  x.  115. 
Property,  when  properly  assigned,  i.  386. 

of  wife  held  in  trust,  how  managed,  ii.  71. 

effect  of  this  word  in  a  will  to  pass  a  fee,  vi.  23. 

what  passes  by  a  bequest  of,  vi.  193. 

in  goods  changed,  when  owner  has  recovered  value  in  an  action,  viii.  292. 

bond,  when  to  be  given,  viii.  539. 

liability  of  sureties  on,  viii.  539. 
when  changed  by  a  trespass,  ix.  548. 
Prostitution,  no  action  lies  for  a  house  let  for  the  purpose  of,  viii.  507. 
Protest,  necessity  of,  vi.  817. 

when  to  be  made,  vi.  819. 
legislative,  what,  ix.  216. 
Protestation,  effect  of,  vii.  532. 
Provision  for  wife,  when  secured  to  her,  ii.  69. 
Proviso,  what,  ii.  281,  554. 
process  by,  v.  332. 
Provocation,  when  evidence  of,  may  be  given,  i.  378. 
Proxies,  when  they  cannot  be  given,  ii.  674. 
Prynne's  parliamentary  writs,  character  of,  ii.  635. 
Puberty,  what,  ii.  80 ;  v.  103. 
Public  bills,  what,  ix.  231. 

meeting,  when  resolutions  of,  are  libellous,  vi.  352,  357. 
money,  how  to  be  drawn  from  the  treasury,  viii.  116. 
officer,  when  a  clergyman  is  a,  vi.  463. 
policy,  what  contracts  are  void  as,  i.  423. 
statutes,  what,  ix.  230. 

effect  of,  ix.  231. 
how  pleaded,  ix.  260. 
Publication  of  a  libel,  evidence  of,  vi.  354. 

sending  letter  to  person  libelled,  vi.  357. 
possession  of  merely,  not  evidence  of,  vi.  357. 
place  of,  vi.  358,  359. 

delivering  petition  to  members  of  parliament  is  not  a,  vi.  358 
slander,  what  required,  ix.  60. 
place  of,  ix.  61. 

3n2 


702  GENERAL   INDEX. 

Publication  of  a  slander,  occasion  of,  ix.  63. 

intention  of,  ix.  64. 
statute,  how  made,  ix.  218. 
deposition,  effect  of,  iii.  526. 
will,  what,  x.  490. 

what,  is  evidence  of,  x.  502. 
Publisher  of  a  libel,  how  far  guilty,  vi.  354. 
responsibility  of,  vi.  355. 
member  of  parliament  liable  as,  vi.  358. 
when  he  may  be  attached  for  contempt,  i.  471. 
Puffing  at  auction,  when  fraudulent,  iv.  387. 
Pulpit  cannot  be  sold  under  execution,  when,  iii.  702. 
Punishment  for  a  nuisance,  what,  vii.  234. 
of  praemunire,  what,  vii.  693. 
libeller,  what,  vi.  359. 
simony,  what,  ix.  7,  22. 

of  incumbent,  ix.  22. 
patron,  ix.  24. 

ordinary,  ix.  24.  » 

sodomy,  ix.  159. 
treason,  what,  ix.  434. 
Purchasers,  what  conveyances  are  void  as  to,  iv.  401. 

when  entitled  to  rent,  viii.  521. 
Purport,  meaning  of,  iv.  372. 

Purview,  what,  ix.  243.  ## 

Putative  father,  when  entitled  to  custody  of  bastard  child,  n.  89,  101. 
Putting  off  a  trial,  what  are  sufficient  reasons  for,  ix.  575. 

Q. 

Quakers,  validity  of  marriages  of,  vi.  469.- 
Qualifications  of  coroner,  ii.  425. 

members  of  corporations,  ii.  455. 
electors,  of  members  of  parliament,  ii.  657. 
members  of  parliament,  ii.  661.  _  _ 

Quality  of  thing  injured  must  appear  in  the  declaration  in  an  action  of  trespass,  ix.  50/ . 
Quantity,  bequest  of  a,  is  a  general  legacy,  vi.  291. 

of  things  injured  must  appear  in  the  declaration  in  an  action  of  trespass, 
ix.  668. 
Quantum  of  damages,  jury  may  give,  iii.  60. 
Quarantine,  what,  iii.  194. 

Quare,  effect  of  this  word  in  a  declaration,  vii.  511. 
Quarry,  right  of  tenant  to  work  a,  v.  612. 
Quartering  soldiers,  how  to  be  made,  ix.  169. 
Quashing  indictment,  for  what  cause,  v.  94. 

effect  of,  v.  96. 
Quasi  copyholder,  who  is,  ii.  378,  379. 
Qua  est  eadem  effect  of  this  averment,  vii.  570. 
Quean,  meaning  of,  ix.  106. 

Question,  interest  in,  does  not  disqualify  witness,  iii.  490,  495. 
Qui  lam,  actions,  when  they  lie,  i.  88. 
form  of,  i.  89. 

in  what  courts  to  be  brought,  i.  91. 
pleas  in,  i.  93. 
judgment  on,  i.  97. 
costs  in,  i.  98  ;  ii.  522,524. 
Quiet  enjoyment,  covenant  for,  effect  of,  ii.  585,  587. 

breach  of,  ii.  595. 
Quinto  exactus,  effect  of,  vii.  340. 

when  to  be  issued,  vii.  354. 
return  of,  vii,  358. 
Quo  warranto,  when  information  in  nature  of,  will  lie,  v.  173. 
Quod  partitio  fiat,  judgment  of,  v.  292. 

cum,  effect  of,  ia  declaration,  vii.  510,  511. 
Quorum,  wha     ii.  469 


GENERAL  INDEX.  703 

R. 

Race,  is  a  game,  when,  iv.  461. 

Railway,  when  not  a  nuisance,  vii.  228. 

Rape,  appeal  of,  i.  293. 

Rascal,  not  slander  to  call  a  man  a,  ix.  29. 

Rasure  in  writing,  effect  of,  iii.  601. 

Rates  relating  to  the  church,  power  of  churchwardens  in  making,  ii.  243. 

Rats,  loss  by,  a  peril  of  the  sea,  vi.  662. 

Real  actions,  limitation  of,  vi.  364. 

covenant,  by  whom  to  be  performed,  ii.  564. 
estate  of  wife,  how  far  vested  in  the  husband,  ii.  16. 
trespass  to,  ix.  458,  480. 
action  of  trespass  for  injuries  to,  ix.  496. 
statutes,  what,  ix.  212. 
Reasonable,  what  is,  ii.  408. 

surety,  what,  viii.  712. 
time,  what,  vi.  682. 
Re-assurance,  when  to  be  made,  vi.  711. 
Rebel,  when  treason  to  correspond  with,  ix.  416. 
Rebellion  does  not  prevent  the  running  of  the  act  of  limitation,  vi.  3! 
Receiver  will  be  appointed,  when,  v.  213. 
Reciprocity  is  observed  in  some  states  as  the  effect  of  discharges  under  the  insolvent 

laws,  i.  550. 
Receipt,  effect  of,  iii.  604 ;  viii.  249. 
Recital,  effect  of,  ii.  311. 

in  an  assignment  of  a  mortgage,  vii.  170. 
when  established  by  a  verdict,  x.  361. 
of  a  statute  in  an  indictment,  effect  of,  v.  87. 
Recognisance,  nature  of,  viii.  605. 
form  of,  i.  596. 
how  forfeited,  i.  597  ;  ix.  309. 
for  keeping  the  peace,  how  forfeited,  ix.  303. 

discharged,  ix.  305. 
of  good  behaviour,  how  forfeited,  ix.  309. 
when  execution  may  issue  on,  iii.  669. 
who  shall  have  execution  on,  iii.  671. 
when  to  be  paid  by  executor,  iv.  108. 
Recommend,  effect  of  this  word  in  a  will,  vi.  166.  _ 
Recommendation,  effect  of  words  of,  in  a  devise,  vi.  166. 
Record,  how  removed  from  an  inferior  court,  i.  255. 
when  defaced,  how  amended,  i.  259. 

proceedings  under  the  bankrupt  act  of  1841,  to  be  deemed  matters  of,  i.  814. 
in  the  inferior  court  must  be  sent  with  certiorari,  ii.  170. 
when  considered  as  removed,  ii.  181. 
how  proved,  iii.  535. 
conclusiveness  of,  iv.  279. 

form  of,  in  cases  of  forcible  entry  and  detainer,  iv.  328. 
trial  by,  what,  ix.  556. 
Recording  deed,  effect  of,  iv.  212. 

which  has  not  been  delivered,  effect  of,  iv.  212. 
Recovery,  what  is,  iv.  288. 

who  may  suffer  a,  iv.  290. 
of  what  may  be,  iv.  292. 
what  estates  are  barred  by,  iv.  293. 
when  void,  iv.  314. 
how  avoided,  iv.  314. 
Rectory,  ejectment  lies  for  a,  iii.  273. 
Reddendo,  effect  of,  ii.  556. 
Redemption,  right  of,  vii.  62. 

who  has  the  right  of,  vii.  62,  79. 

what  fund  liable  to,  vii.  67. 

who  entitled  to  money  paid  on,  vii.  84. 

precedency  in  right  of,  vii.  89. 
whether  purchaser  of  rights  of  another  is  entitled  to,  vii.  104. 
person  claiming  must  do  equity,  vii.  134. 


704  GENERAL  INDEX. 

Redemption,  manner  of,  vii.  151. 

of  pledge,  "when  it  may  be  made,  i.  610,  613,  614. 
by  assignees  of  bankrupt,  i.  813. 
Re-entry,  how  to  be  made,  viii.  157. 

pre-requisites  to  a,  viii.  481,  482. 
clause  of,  viii.  496. 
right  of,  how  exercised,  iii.  287,  288. 
for  breach  of  condition,  when  good,  v.  670. 
what  is  a  forfeiture  to  entitle  to  a,  ii.  307. 
when  it  may  be  made,  ii.  312. 
effect  of,  ii.  316. 
Referees,  attachment  for  contempt  against,  i.  471. 
Reform,  meaning  of,  v.  313. 

Refreshments,  when  a  verdict  will  be  rendered  void  because  the  jury  took,  x.  363. 
Refunding  of  legacy,  when  to  be  made,  vi.  298. 
Register  of  births,  &c,  when  evidence,  iii.  573,  574. 
Registry  of  a  mortgage,  effect  of,  vii.  129,  132,  133. 

equivalent  to  notice,  vii.  132. 
takes  effect  according  to  priority,  vii.  133. 
assignment  of  a  mortgage,  effect  of,  vii.  132. 
a  ship,  effect  of,  vi.  599. 
Regrator,  charge  of  being  a,  actionable,  ix.  42. 
Regularity  of  proceedings  of  corporation,  ii.  461. 
Rejoinder,  what,  vi.  462. 
Relation,  to  what  time  bail  shall  have,  i.  563. 
of  act  of  bankruptcy,  i.  746. 
execution,  what,  iii.  725. 
Relations,  effect  of  devise  to,  vi.  148,  186,  187. 
Release,  what,  viii.  245. 

kinds  of,  viii.  245. 
construction  of,  viii.  245,  289. 
express,  viii.  246. 

form  of,  viii.  246. 

covenant  may  operate  as  a,  viii.  248. 
to  one  of  several  debtors,  effect  of,  viii.  249. 
of  part  of  a  ground-rent,  effect  of,  viii.  250,  292,  293. 
how  far  a  disposition  by  will  may  operate  as  a,  viii.  251. 
by  operation  of  law,  how  created,  viii.  253. 
the  appointment  of  a  debtor  to  be  executor,  how  far  a,  viii.  255. 
marriage  of  obligor,  when  a,  viii.  256. 
of  lands,  how  they  inure,  viii.  257. 

by  way  Emitter  le  estate,  viii.  257. 

mi  tier  le  droit,  viii.  260.  • 

extinguishment,  viii.  262. 
enlargement,  viii.  264. 
what  interest  passes  by  the,  viii.  267. 
who  are  capable  to  make  a,  viii.  269. 
one  of  two  partners  may,  viii.  270,  288. 
one  of  two  trustees  cannot,  viii.  270. 
cannot  extinguish  future  rights,  viii.  271. 
assignor  of  a  bond  cannot  make  a,  viii.  271,  272. 
by  executors  and  administrators,  viii.  273. 

husband  of  wife's  interest,  when  valid,  viii.  274. 
to  whose  benefit  it  inures,  viii.  276. 

one  of  several  debtors,  effect  of,  viii.  276. 
of  dower,  when  valid,  viii.  281. 
when  restrained  to  a  special  purpose,  viii.  288. 
recital  in  a  deed,  how  far  a,  viii.  291. 
what  interest  is  given  up  by  a,  viii.  292. 
may  be  conditional,  viii.  292. 

without  consideration  and  not  under  seal,  is  void,  viii.  293. 
its  effect  to  cure  error,  iii.  377,  380. 
in  a  cognovit,  iii.  380. 
Relief,  origin  of,  iv.  656. 

from  awards,  when  granted,  i.  662. 
Religion,  offences  against,  how  punished,  iv.  636. 


GENERAL   INDEX.  705 

Religion,  offences  against,  by  statute,  iv.  637. 

profaning  Lord's  day,  iv.  637. 
swearing,  iv.  641.  k 

drunkenness,  iv.  641. 
reviling  the  sacrament,  iv.  641. 
common  prayer,  iv.  641. 
Reliques,  papists'  houses  may  be  searched  for,  vii.  375. 
Remainder  after  a  bequest  to  an  unborn  child,  void,  vi.  119. 
over,  when  valid,  vi.  198. 

too  remote,  vi.  198. 
Remainders  and  reversions,  origin  of,  viii.  294. 

of  what  things  there  may  be,  viii.  297. 

cannot  be  limited  in  chattels,  viii.  300. 

of  personal  property  may  be  limited  after  a  iife-estate,  viii.  301. 

by  what  words  created,  viii.  302. 

difference  between  executory  devises  and  contingent,  viii.  304. 

designation  of  the  person  to  take  in,  viii.  304. 

kinds  of,  viii.  315. 

vested,  viii.  315. 
contingent,  viii.  315. 
which  arise  on  conditions,  viii.  380. 
vested  must  be  supported  by  particular  estate,  viii.  406. 
when  subject  to  the  acts  of  particular  tenant,  viii.  442. 
accounted  but  one  with  the  particular  estate,  viii.  445. 
how  to  be  executed,  x.  157. 
defeated,  x.  158. 

where  there  is  no  power  of  revocation,  x.  158. 
where  there  is  an  express  power,  x.  160. 
suspended,  revived,  or  extinguished,  x.  167. 
Remedial  statute,  how  construed,  ix.  251. 
Remedies,  in  equity,  i.  158.     See  Specific  Performance. 
for  the  recovery  of  an  annuity,  i.  273. 
by  the  lord  of  the  soil  against  commoners,  ii.  266. 
against  lord  of  the  soil  by  commoners,  ii.  268. 
other  commoners,  ii.  269. 
strangers,  ii.  270. 
for  fine  of  copyholder,  ii.  409. 
by  joint-tenants,  v.  299  ;  vii.  257. 

tenants  in  common,  v.  299. 
against  joint-tenants,  v.  299. 

tenants  in  common,  v.  299. 
by  joint-tenants  against  each  other,  v.  304. 

joint  obligors  against  each  other,  vii.  257. 
on  bills,  vi.  834. 

upon  a  false  return  to  a  mandamus,  vi.  451. 
Remedy  to  recover  rent  by  distress,  viii.  492. 

writ  of  annuity,  viii.  495. 
assize,  viii.  496. 
re-entry,  viii.  496. 
nomine  pwnse,  viii.  498. 
action,  viii.  499. 

for  use  and  occupation,  viii.  503. 
payment  to  the  sheriff,  viii.  509. 
Remission  of  penalty,  effect  of,  viii.  67. 
Remote,  when  devise  is  too,  vi.  118,  198. 
Removal  of  suits  into  Exchequer,  viii.  103. 

Circuit  Courts  of  the  United  States,  viii.  105;  u.  810. 
from  office,  when  it  may  be,  vii.  311. 
Renewal  of  lease,  effect  of  covenant  for  a,  v.  676. 
Rent,  history  of,  viii.  447. 
kinds  of,  viii.  450. 
service,  viii.  450. 
charge,  viii.  452. 
seek,  viii.  453. 
out  of  what  things,  viii.  454. 
ground,  what,  viii.  450. 
Vol.  X.— 89 


706  GENERAL    INDEX. 

Rent,  release  of  part  of  ground,  effect  of,  viii.  250,  292,  293. 
service,  how  reserved,  viii.  457. 
how  reserved,  viii.  459. 

by  operation  of  law,  viii.  459. 
agreement,  viii.  459. 

express,  viii.  459. 
implied,  viii.  459,  462. 
rules  respecting  the  creation  of,  viii.  460. 

1.  must  not  be  inconsistent  with  the  grant,  viii.  460. 

2.  must  be  productive  to  the  tenant,  viii.  460. 

3.  may  be  in  the  disjunctive,  viii.  460. 

4.  must  have  a  time  of  payment,  viii.  460. 

5.  cannot  be  reserved  to  a  stranger,  viii.  460,  470. 

6.  may  be  reserved  generally,  viii.  460,  470. 

7.  ought  to  be  to  grantor  and  his  heirs,  viii.  461. 

8.  how  construed,  viii.  461. 

9.  the  reservation  follows  the  nature  of  the  interest  granted,  viii.  461. 

10.  it  will  follow  the  nature  of  the  estate  granted,  viii.  462. 

11.  rent  need  not  be  absolutely  reserved,  viii.  462. 

12.  though  the  demise  be  entire,  the  reserved,  may  be  split  into  parcels,  viii. 

462. 

13.  when  lands  and   personal  chattels  are  let  together,  the  whole  rent  is 

payable  out  of  the  land,  viii.  462. 

14.  after  tenure  has  been  created,  it  cannot  be  changed,  viii.  462. 
when  payable,  viii.  460,  466. 

tender  of,  viii.  469.     See  Tender. 

may  be  payable  in  advance,  viii.  470. 

to  whom,  may  be  reserved,  viii.  470. 

cannot  be  apportioned  between  personal  representative  and  heir,  viii.  472,  476. 

when  to  commence,  viii.  472. 

continuance  of,  viii.  473. 

rights  of  heir  to,  viii.  473,  476. 

executorto,  viii.  473,  476. 

vendor  to,  viii.  473. 

vendee  to,  viii.  473. 

tenant  in  tail,  to,  viii.  479. 

remainder  man,  to,  viii.  479. 
apportionment  of,  viii.  480. 
recovery  of,  viii.  481. 
lemand  of,  viii.  481. 

time  of,  viii.  486. 
place  of,  viii.  486. 
power  of  re-entry  for,  viii.  483. 
remedies  to  recover,  viii.  492.     See  Remedy. 
recovery  of,  by  distress,  viii.  492. 
payment  of,  to  sheriff,  viii.  509,  510. 
how  discharged,  viii.  512. 
suspended,  viii.  514. 
charge,  what,  viii.  517. 
purchaser  entitled  to  what,  viii.  521. 
suspension  of,  viii.  523. 
extinguishment  of,  viii.  523  ;  iv.  141. 
what  can  be  claimed  from  bankrupt's  estate,  i.  695. 
non-payment  of,  forfeiture  of  a  copyhold,  ii.  414. 
when  assignee  liable  for,  ii.  566,  571. 

assignee  not  liable  for,  till  he  takes  possession,  ii.  570,  571. 
for  what  a  distress  may  be  made,  iii.  176. 
when  it  belongs  to  the  heirs  or  executors,  iv.  81,  84,  631. 

heir  is  not  responsible  to  creditors  for,  iv.  623. 
to  be  reserved  in  ecclesiastical  leases,  v.  509. 
must  be  payable  to  successors,  v.  509. 
amount,  of,  v.  509. 

reservation  of,  how  made,  v.  511,  515. 
effect  of  a  devise  of,  vi.  82. 
when  mortgagee  accountable  for,  vii.  180. 
ftm.70y,  not  now  used,  vii.  443. 


GENERAL   INDEX.  70' 

Repairs,  covenant  to  make,  effect  of,  ii.  586. 

of  tenancy,  in  common  or  joint  tenancy,  how  made,  v.  306. 
when  tenant  hound  to  allow,  v.  708. 
of  trust  estate,  how  to  be  borne,  x.  253. 
when  mortgagee  allowed  expenses  for,  vii.  1G3. 
mortgagee  bound  to  make,  vii.  163,  180. 
Repeal  of  act  of  parliament,  effect  on  covenants,  ii.  590. 
a  statute,  effect  of,  ix.  225. 
letters  of  administration,  effect  of,  iv.  61. 
Repeating  slanderous  words,  when  actionable,  ix.  81. 
Replevin,  division  of  the  subject,  viii.  524. 
nature  of,  viii.  525,  527. 
defined,  viii.  525. 

for  what,  may  be  brought,  viii.  525. 
both  parties  are  actors  in,  viii.  526. 
is  a  local  action,  viii.  527. 
kinds  of,  viii.  527. 
pledges  in,  viii.  532. 
bond,  form  of,  viii.  539. 

1.  original  writ  of,  viii.  540. 

2.  withernam,  viii.  541. 

3.  second  deliverance,  viii.  513. 

4.  de  proprietate  probanda,  viii.  545. 

5.  de  retorno  habendo,  viii.  546. 

6.  return  irreplevisable,  viii.  547. 

7.  how  sheriff  must  execute  process  of,  viii.  547. 
for  what  a,  lies,  viii.  549. 

lies  against  whom,  viii.  550. 
declaration  in,  viii.  553. 
pleas  in,  viii.  556. 
avowries  in,  viii.  558. 
judgment  in,  viii.  575. 
there  can  be  no  set-off  in,  viii.  641. 
costs  in,  ii.  525. 
Repleader,  what,  vii.  657. 

how  awarded,  vii.  657. 
in  what  cases  awarded,  vii.  658. 
at  what  time  awarded,  vii.  661. 
not  allowed  after  a  discontinuance,  vii.  662. 
Replication,  what,  vii.  462. 

in  trespass,  ix.  530. 
Report  of  proceedings  in  court  not  libellous,  vi.  349. 

when  coloured,  are  libellous,  vi.  349. 
trial  by  a  judge,  when  required,  ix.  586. 
Representation  in  insurance,  what,  vi.  725. 
Reprisals,  when  allowed,  ii.  749. 
Republication  of  a  will,  what,  x.  504. 

how  made,  x.  504. 
parol,  when  sufficient,  x.  505. 
not,  x.  505. 
Repugnancy,  when  and  when  not  cured  by  verdict,  i.  249. 
effect  of,  vii.  601. 

words  may  be  slanderous  notwithstanding  their,  ix.  80. 
in  different  statutes,  effect  of,  ix.  227. 
Repugnant  condition,  what,  ii.  301. 
Reputation  when  evidence,  iii.  633,  634. 

of  marriage,  vi.  460,  462. 
Request,  effect  of  this  word  in  a  will,  vi.  166. 
Res  gestae,  when  evidence,  iii.  641. 

judicata,  effect  of,  vii.  639.     See  Former  recovery. 
Rescue,  what,  viii.  580. 

offence  of,  viii.  582. 
when  justified,  viii.  581. 
return  of  a,  viii.  589.     See  Return. 
Reservation,  effect  of,  iv.  522. 

of  highways,  effect  of,  iv.  537. 


708  GENERAL  INDEX. 

Reservation  of  rent,  by  operation  of  law,  viii.  459. 

express  agreement,  viii.  459,  460. 
implied  agreement,  viii.  449,  462. 
must  be  to  the  grantor,  viii.  460. 

follow  the  nature  of  the  estate,  viii.  462,  475. 

interest,  viii.  461. 
may  be  general,  viii.  460. 

split,  viii.  462. 
no  technical  expressions  requisite  to,  viii.  462. 
out  of  what  a,  may  be,  viii.  470. 
Residuary  bequest,  what  is  a,  vi.  192,  302,  303. 

carries  after-acquired  personal  property,  vi.  304, 
what  passes  under  a,  vi.  304. 
Residue,  bequest  of,  vi.  302. 

what  passes  by  a  bequest  of,  vi.  303,  304. 
never  considered  a  specific  legacy,  vi.  305. 
Resignation  cannot  be  made  by  parson  on  condition,  ii.  284. 
Resisting  revenue  officer,  penalty  for,  ix.  149. 
Resolution  of  house  of  parliament,  effect  of,  iii.  554. 
Respondentia,  what,  vi.  749. 

lender  takes  the  risk  of  loss  in  cases  of,  vi.  753. 
Restitution,  when  allowed,  iii.  390. 

in  forcihle  entry  and  detainer,  iv.  331,  334. 
what  is  a  bar  to  such,  iv.  332. 
Restraint  of  trade,  a  by-law  in,  is  void,  ii.  143. 

princes,  what,  vi.  666. 
Restraints  to  which  papists  are  subject,  vii.  373. 
Restriction  of  alienation,  when  void,  viii.  393. 
Rests,  when  the  master  may  make  annual,  vii.  170. 
Resulting  trust  not  liable  to  execution,  iii.  702. 
uses,  what,  x.  176. 
trust,  what,  x.  199. 

when  one* buys  land,  and  the  money  is  paid  by  another,  x.  208. 
must  arise  at  the  time  of  making  deed,  x.  208. 
cannot  be  against  intention  of  the  parties,  x.  208. 
Retainer  of  a  legacy,  when  to  be  made,  vi.  306. 
Retorno  habendo,  writ  of,  viii.  546. 
Retraxit,  what,  vii.  214. 

difference  between  nolli  prosequi  and,  vii.  215. 
when  to  be  entered,  vii.  215. 
when  a  nonsuit  amounts  to  a,  vii.  215. 
effect  of,  as  to  one  of  several  joint-obligors,  vii.  255. 
Retrospective  laws,  effect  of,  ix.  221. 
Return  to  certiorari,  how  made,  ii.  179. 

of  execution,  when  to  be  made,  iii.  686,  688. 

effect  of,  iii.  688. 
effect  of  debtor's,  vi.  392. 
to  a  mandamus,  how  made,  vi.  447. 

traversing  of,  vi.  450. 
remedy  for  a  false,  vi.  451. 
of  premium,  when  required,  vi.  736. 
habeas  corpus,  by -whom  to  be  made,  iv.  581. 
what  matters,  iv.  584. 
when  sufficient,  iv.  585. 
cannot  be  contradicted,  when,  iv.  587. 
when  defect  of,  may  be  amended,  iv.  588. 
king  may  command  his  subjects  to,  viii.  53. 
form  of  a,  in  rescous,  viii.  589. 

when  traversable,  viii.  592. 
to  a  scire  facias,  form  of,  viii.  621,  622. 
irreplevisable,  what,  viii.  547. 
Returning  officers,  their  duty,  ii.  667. 
Revenue,  what,  viii.  118. 
Reversal  of  judgment  for  part  and  affirmed  for  part,  iii.  383. 

in  a  criminal  case  is  for  the  whole,  iii.  386. 
Reverter,  what,  viii.  449. 


GENERAL  INDEX.  709 

Revival  of  a  debt,  what,  vi.  399. 

statute,  what,  ix.  224. 

is  a  constructive,  ix.  225. 
Revocation  of  submission,  when  it  may  be  made,  i.  306. 
authority,  when  it  takes  place,  i.  529. 
a  will,  what,  x.  541. 
is  express  or  implied,  x.  542. 
effect  on  a  former  will,  x.  542. 
by  cancelling,  what,  x.  541,  546. 
codicil,  effect  of,  x.  552. 
subsequent  devise,  x.  555. 
change  of  estate,  x.  557. 
marriage,  x.  568. 
Reward  for  executing  an  office,  when  lawful,  vii.  324. 
Rhodian  laws,  what,  ii.  744. 

force  of,  vi.  623. 
Riens  jjassa  par  fa  fait,  effect  of  plea  of,  iii.  590. 

inarrere,  when  a  good  plea,  vii.  531  ;  viii.  558,  574. 
Rights  of  bankrupt,  when  they  pass  to  his  assignees,  i.  722,  805. 
administrators  de  bonis  non,  iv.  24. 
freehold,  costs  when  the,  come  in  question,  ii.  486. 
husband  over  real  estate  of  wife,  ii.  14. 

personal  estate  of  wife,  ii.  15. 
wife's  choses  in  action,  ii.  21. 

property  accruing  to  her  during  coverture,  27. 
cestui  que  trust,  x.  258. 
Riot  act,  punishments  under  the,  iv.  713. 

liability  of  the  hundred  under  the,  iv.  713. 
justices  bound  to  assist  in  suppressing,  v.  425. 
Ripa,  what,  viii.  28. 

Riparian  owners,  rights  of,  vii.  453,  455  ;  viii.  20,  24. 
Risk,  commencement  of,  vi.  647,  648. 

duration  of,  vi.  647. 
River,  what  passes  by  a  grant  of,  iv.  530. 
is  a  navigable,  vii.  453. 

public  nuisance  in  a,  vii.  228. 
channels  of,  belong  to  the  king,  viii.  14. 
rights  of  the  king  over,  viii.  18. 
Robbery,  what,  to  make  hundred  liable,  iv.  697. 

when  to  be  committed  to  make  hundred  liable,  iv.  698. 
what  shall  be  liable  for,  iv.  699. 
who  to  bring  action  against  the  hundred,  iv.  700. 
when  notice  of,  is  to  be  given  to  the  hundred,  iv.  702. 
oath  of,  when  to  be  made  to  bind  the  hundred,  iv.  704. 
no  excuse  to  a  common  carrier,  ii.  154. 
Rogue,  it  is  not  slander  to  call  a  man  a,  ix.  29,  43,  46,  48. 
Rofl,  when  attorney  may  be  struck  off  the,  i.  509. 
Rolls,  what  is  a  statute,  ii.  673. 
lords',  ii.  673. 
of  parliament,  ii.  673. 

court  baron,  when  evidence,  iii.  573. 
Rome,  it  is  treason  to  extol  the  power  of  the  see  of,  ix.  409. 

reconcile  any  person  to  the  see  of,  ix.  412. 
Royal  franchise  of  Ely,  ii.  761. 

assent  to  statutes,  how  given,  ii.  671. 
Rule  in  Shelly's  case,  vi.  43. 
Rules  of  court,  when  they  may  be  made,  ii.  826. 

construction  of  statutes,  ix.  238. 
Running  with  the  land,  covenants  when,  ii.  567. 

of  statute  of  limitations,  effect  of,  vi.  368. 
Ruralis,  meaning  of,  vi.  410. 
Sabbatarians,  marriage  of,  vi.  462. 

s. 

Sacrament,  offence  of  reviling  the,  iv.  611. 
fine  for  not  taking  the,  vii.  375. 

30 


710  GENERAL  INDEX. 

Saevitia,  when  a  ground  for  divorce,  vi.  500. 
Sale,  when  complete,  i.  414. 

on  credit,  when  assumpsit  will  lie  on,  i.  414. 
under  execution,  how  to  be  conducted,  iii.  704. 
in  market  overt,  effect  of,  iv.  160. 
difference  between  a  mortgage  and  a,  vii.  39. 
Salvage,  what,  vi.  679. 

when  it  may  be  claimed,  ii.  752. 
to  whom  it  belongs,  ii.  751. 
jurisdiction  of  D.  C.  in  cases  of,  ii.  816. 
Sanguino  suo,  effect  of  these  words,  vi.  15. 
Sans  number,  what,  ii.  265. 
Satisfaction,  what  is,  i.  54. 

when  a  legacy  shall  be  a,  vi.  210,  213. 

legacy  given  for  a  different  interest,  not  a,  vi.  211. 

when  a  legacy  is  a  free  gift,  it  is  not  a,  vi.  212. 

debt  is  due  on  negotiable  bill  of  exchange,  a  legacy  is  not  a,  vi.  222. 
of  portions,  what  is,  vi.  235. 
Scandalum  magnatum,  what,  viii.  592  ;  ix.  30. 

who  entitled  to  an  action  of,  viii.,  593. 
for  what  it  lies,  viii.  593. 
proceedings  in,  viii.  596. 
School,  offence  of  teaching,  without  conforming  to  the  church,  iv.  644. 
Schoolmaster,  when  considered  a  trader,  i.  800. 

slander  against  a,  ix.  52. 
Scienter,  effect  of,  ix.  506. 
Scire  facias,  nature  of,  viii.  598. 
form  of,  viii.  598. 
requisites  of,  viii.  598. 

when  to  be  issued  quo  ad  residuum,  viii.  598. 
when  a  proper  remedy,  viii.  599. 
to  revive  judgments,  viii.  600. 
on  recognisances  and  statutes,  viii.  605. 
letters  patent,  viii.  608. 
franchises,  viii.  609. 
by  and  against  executors,  viii.  609. 

administrators,  viii.  609. 
heirs,  viii.  611. 
terre-tenants,  viii.  611. 
husband  and  wife,  viii.  614. 
against  bail,  viii.  616. 

several  defendants,  viii.  618. 
form  of  writ  of,  viii.  619. 
requisites  of  writ  of,  viii.  619. 
no  declaration  requisite  on,  viii.  620. 

when  returnable,  viii.  620.  ^ 

service  of,  viii.  621. 
return  to,  viii.  622. 
from  what  court  to  issue,  viii.  622. 
pleading  to  a,  viii.  624. 
will  be  quashed,  when,  viii.  628. 
ad  audiendum  errores,  iii.  349 
when  required,  iii.  723. 
in  outlawry,  when  proper,  vii.  367. 
Scottish  peers,  number  of,  ii.  648. 
Se  defendendo,  homicide,  when  justified,  vii.  184. 

what  is,  vii.  213. 
Sea,  prerogative  of  the  king  over  the,  viii.  18. 
right  of  fishing-  in,  viii.  18. 
shore,  what,  viii.  21. 

jurisdiction  over,  vii.  446. 
right  to  the,  ix.  483. 
risk,  what,  vi.  662. 
wall,  how  to  be  repaired,  ii.  785. 
worthiness,  what,  vi.  701. 
Seal,  what,  iv.  219. 


GENERAL  INDEX.  711 

Seal,  requisite  in  a  deed,  iv.  219. 
form  of,  iii.  585. 
of  courts,  how  proved,  iii.  535. 
torn  off,  effect  of,  iii.  603  ;  vii.  256. 
partner  cannot  bind  his  copartner  by,  vi.  581. 
a  writ  is  void,  if  it  have  no,  viii.  690. 

good  with,  though  without  a  signature,  viii.  690,  691. 
Sealing  required  to  make  a  bond,  vii.  243. 
to  a  will,  when  required,  x.  490. 

not,  x.  490. 
Seamen,  who  are,  vi.  601.     See  Mariners. 
Second  deliverance,  writ  of,  viii.  543. 

when  it  may  be  had,  viii.  543. 
form  of,  viii.  543. 

does  not  lie  after  judgment,  viii.  544. 
taken  away,  in  what  cases,  viii.  544. 
when  a  supersedeas,  ix.  283. 
bankruptcy,  effect  of,  i.  814. 
uses,  what,  x.  184. 
Secret  conveyance,  when  a  fraud  on  marital  rights,  iv.  394. 
Secretary  of  state  may  commit,  i.  583,  n. 
Securities  for  money,  what  passes  by  a  bequest  of,  vi.  195. 

when  avoided  on  the  ground  of  usury,  x.  285. 
Security  for  cost,  when  required,  ii.  537. 

of  non-residents,  ii.  548. 

insolvents,  ii.  549. 
in  miscellaneous  cases,  ii.  549. 
when  required  of  tenant  for  life,  vi.  198. 
Seduction,  whe  maintain  an  action  for,  ix.  452,  453. 
Seised,  meaning  of,  x.  126. 

Seisin,  what,  is  sufficient  to  maintain  an  assize,  i.  393. 
covenant  of,  effect  of,  ii.  582,  583. 

breach  of,  ii.  595. 
of  wife  required  to  create  a  curtesy,  iii.  11. 
when  not  required,  iii.  11. 

in  law,  sufficient,  iii.  11. 
to  begin  and  end,  iii.  13. 
husband,  when  required  to  create  dower,  iii.  207. 
Seizure,  what  property  is  liable  to,  viii.  703. 
Select  men  of  a  town  may  submit  a  matter  to  arbitration  as  agent*  for  the  town. 

i.  314. 
Selling  an  office,  offence  of,  vii.  296. 
Seminisuo,  effect  of  these  words,  vi.  15,  30. 
Semper  par atus  cannot  be  pleaded  after  imparlance,  vii.  521. 
Senate,  when  a  court,  ii.  795. 

organization  of,  ii.  776. 
jurisdiction  of,  ii.  796. 
Sentence  of  court  martial,  not  libellous,  vi.  344. 
effect  of  foreign,  vi.  733. 
in  admiralty,  effect  of,  ii.  745. 
Separate  property  of  wife,  how  managed,  ii.  71. 
Separation  of  husband  and  wife,  effect  of,  ii.  14,  48,  83. 
Sequestration,  nature  of,  viii.  628. 

when  introduced,  viii.  629. 

not  granted  upon  petition,  viii.  630. 

when  granted,  viii.  630,  631. 

against  whom  awarded,  viii.  631. 

to  what  places,  viii.  632. 

what  estate  is  liable  to,  viii.  630. 

copyhold  lands,  viii.  632. 
real  estate,  viii.  632. 
personal  estate,  viii.  632. 
choses  in  action,  viii.  632,  633. 
effect  of,  viii.  633,  634. 
when  determined,  viii.  638. 
Sequestrators,  powers  and  duties  of,  viii.  634. 


712  GENERAL  INDEX. 

Servant,  who,  vi.  500.     See  Apprentice,  Master. 

difference  between  apprentice  and,  vi.  501. 
manner  of  hiring,  vi.  501. 
wages  when  recoverable,  vi.  531. 

not  recoverable,  vi.  531. 
acts  of,  when  deemed  acts  of  master,  vi.  533. 
when  master  answerable  for  acts  of,  vi.  535. 
answerable  for  his  own  acts,  vi.  542. 
to  his  master,  vi.  544. 
civilly,  vi.  544. 
criminally,  vi.  545. 
punishable  by  his  master,  when,  vi.  549. 
may  justify  defending  his  master,  vi.  551. 
who  shall  take  under  a  legacy  to,  vi.  186. 

giving  character  of,  when  a  libel,  vi.  344.  # 

when  fraudulent  acts  of,  affect  master,  iv.  383. 
Service,  by  what,  an  estate  may  be  holden,  ix.  363. 
how  extinguished,  ix.  364. 
tenure  by  divine,  what,  ix.  371. 
knight's,  what,  ix.  372. 
Set-off,  what,  viii.  639. 

difference  between  compensation  and,  viii.  639. 

nature  of,  viii.  640. 

the  debt  must  be  mutual  to  entitle  party  to  a,  viii.  640.    ' 

limitation  maybe  pleaded  to  a,  viii.  641. 

in  what  actions  there  may  be  a,  viii.  641. 

what  debts  may  be,  viii.  642. 

nature  of  the  demand  to  be,  viii.  642. 

claims  before  judgment  may  be,  viii.  642. 

judgments  may  be,  viii.  648. 

costs  may  be,  viii.  644. 

in  replevin  there  is  no,  viii.  641. 

against  what  claims  there  may  be  a,  viii.  649. 

what  parties  may,  viii.  649.     See  Parties. 

when  there  must  be  a  plea  of,  viii.  657. 

notice  of,  viii.  657. 
effect  of,  viii.  659. 

when  it  can  be  pleaded  in  covenant,  ii.  614. 
allowed  in  bankrupt  cases,  i.  758,  810. 
Settlement  on  wife,  effect  of,  ii.  22. 

of  bastard  children,  ii.  98. 

soldiers,  how  ascertained,  ix.  191. 
Several  contractors,  when  each  liable  for  his  portion  of  the  consideration,  i.  419. 
Severalty,  when  covenants  will  be  construed  to  be  in,  ii.  577. 
Severance,  what,  ix.  2G7. 

judgment  of,  ix.  2G7. 
in  what  actions  there  shall  be,  ix.  270. 
effect  of  judgment  of,  ix.  273. 
of  joint-tenancy,  how  effected,  v.  279. 
what  disposition  will  work  a,  v.  281. 
to  a  stranger,  v.  281. 

another  joint-tenant,  v.  282. 
by  operation  of  law,  v.  289. 

compulsion,  v.  290. 
summons  and,  v.  299. 
Sewers,  court  of  commissioners  of,  ii.  784. 
Sham  pleas,  consequences  of,  vii.  550. 
Shelby's  case,  rule  in,  vi.  43. 

Sheriff's  return,  its  effect  as  an  instrument  of  evidence,  iii.  553. 
duty  in  executing  an  execution,  iii.  731. 
bow  compelled  to  execute  an  execution,  iii.  732. 
authority  of,  iii.  732. 
penalty  for  hindering,  iii.  734. 
when  he  can  demand  indemnity,  iii.  733. 
nature  of  his  office,  viii.  (360. 
qualification  of,  viii.  062. 


GENERAL   INDEX. 

Sheriff,  who  is  exempt  from  serving  as,  viii.  662. 

election  of  unqualified  person  as,  not  void,  viii.  666. 
manner  of  appointing,  viii.  666. 
oath  of,  viii.  666. 
continuance  of  office  of,  viii.  668. 
determination  of  office  of,  viii.  668. 
must  attend  to  no  other  office,  viii.  668. 
cannot  act  as  solicitor,  viii.  668. 
must  he  a  resident  of  his  county,  viii.  669. 
cannot  dispose  of  his  hailiwick,  viii.  670. 
power  and  duty  of  high,  viii.  671. 
appointment  of  under,  viii.  671. 
,  covenants  between  under  sheriff  and  high,  viii.  673. 

acts  of  deputy  or  under  sheriff,  or,  viii.  675. 
jurisdiction  of,  over  jails,  viii.  680.     See  Jails. 
responsible  ciciliter  for  acts  of  deputy,  viii.  679. 
liable  for  escape,  viii.  681,  682,  683. 
acts  of  preceding,  viii.  683. 
succeeding,  viii.  683. 
acts  of,  when  there  is  more  than  one,  viii.  685. 
duty  of,  as  a  judicial  officer,  viii.  688. 

ministerial  officer,  viii.  689. 
bound  to  execute  writs,  viii.  689. 
cannot  dispute  authority  of  a  court  having  jurisdiction,  yiii.  690. 

inquire  into  the  regularity  of  the  proceedings,  viii.  690. 
justified  by  a  writ  of  court  having  jurisdiction,  viii.  691. 
must  execute  writs,  viii.  693. 
how  to  execute  Ji.  fa.,  viii.  693,  702. 
diligence  to  be  used  by,  in  executing  process,  viii.  694. 
power  to  raise  the  posse  comitatus,  viii.  695. 

break  doors,  when,  viii,  696. 
when  and  where  to  execute  writs,  viii.  700. 
how  to  execute  writs,  viii.  702. 

of  replevin,  viii.  547. 
his  duty  on  arrests,  viii.  712. 

in  returning  writs  of  arrest,  viii.  718. 
bringing  in  the  body,  viii.  718. 
actions  by  and  against,  viii.  720.     See  Actions. 
liability  in  cases  of  replevin,  viii.  547. 

sale,  when  landlord  is  entitled  to  money  made  on,  viii.  510,  512. 
attachment  for  contempt  against,  i.  468. 
must  take  bail  in  civil  cases,  i.  534. 
may  bail  in  criminal  cases,  i.  582. 
may  make  an  under-sheriff,  vii.  318. 
Sheriffs'  courts,  ii.  791. 

'  torn,  what,  ii.  708. 

manner  of  holding,  ii.  769. 
jurisdiction  of,  ii.  770. 
Shifting  uses,  what,  x.  184. 
Ship-damage,  what,  vi.  635. 

punishment  for  fraudulently  destroying,  vi.  701. 
sea-worthiness  of,  when  required,  vi.  701. 
when  to  be  hypothecated,  ii.  745. 
penalty  for  hovering  on  the  coast  with,  ix.  141. 
Ships,  part  owners  of,  vi.  592.     See  Part-owners. 
repairs  of,  vi.  592. 
rights  of  masters  of,  vi.  592. 
liability  of  owners  of,  vi.  594,  597._ 
mortgagee  of,  when  liable  for  repairs,  vi.  599. 
effect  of  registry  of,  vi.  599. 
Shipping  articles,  requisites  of,  vi.  609. 

how  encouraged,  vi.  849. 
Shooting,  when  mayhem,  vi.  409. 
Shop  books,  when  evidence,  iii.  582. 

Should  have  the  power,  construction  of  these  words,  vi.  440. 
Si,  effect  of,  ii.  281. 

Vol.  X.— 90  3o2 


711  GENERAL   INDEX. 

Sight,  meaning  of,  vi.  819. 

when  a  demand  must  be  made  of  a  bill  payable  at,  vi.  823. 
Signals  to  smugglers,  penalty  for  making,  ix.  148. 
Signature,  effect  of,  iii.  508. 

of  officer  not  indispensable  to  writ,  viii.  691. 
to  a  will,  what  is  a  sufficient,  x.  490. 
ling,  when  requisite  under  the  statute  of  frauds,  i.  187. 

in  a  bond,  vii.  243. 
.  .  when  a  libel  may  be  committed  by,  vi.  338. 
/  ccedua,  what,  x.  21. 
Similiter,  when  required,  vi.  558. 
Simony,  what,  ix.  5. 

offence  of,  ix.  6. 
punishment  of,  ix.  7,  22. 

oath  against,  ix.  8.  , 

corrupt  presentation,  when,  ix.  8. 
bonds  for  resigning  benefices,  when,  ix.  13. 
Single  voucher,  what,  iv.  294. 

woman  is  a  good  addition,  vii.  11. 
Skill,  sheriff  is  liable  for  want  of,  viii.  722. 
Similitude  of  hands,  when  evidence,  iii.  639. 
Slander,  what,  ix.  28. 

punishment  of,  ix.  29. 

division  of  the  subject  of,  ix.  30. 

when  an  action  lies  for,  ix.  31, 

words  are  actionable  in  themselves,  ix.  33. 
words  charging  crimes,  ix.  33.     See  Actionable  words. 
what  is  a  publication  of,  ix.  60,  64. 
limitation  in  actions  of,  vi.  374. 
costs  in  actions  of,  ii.  495. 
Slaughter-house,  when  a  nuisance,  vii.  229. 
Slave  may  contract  for  his  manumission,  i.  154. 

a  free  person  who  renders  service  as  a,  may  recover  in  assumpsit,  i.  432. 
may  be  witness,  wdien,  iii.  473. 

subject  of  larceny,  iv.  178. 
cannot  take  by  devise,  vi.  189. 

what  is  considered  increase  of  female,  vi.  194,  197,  293. 
what  passes  by  a  bequest  of,  vi.  198. 

when  female  is  bequeathed,  who  is  entitled  to  her  children,  vi.  293. 
considered  a  prisoner,  vi.  389. 
who  entitled  to  profits  of  mortgaged,  vii.  180. 

issue  of  mortgaged,  vii.  182. 
murder  of,  vii.  189. 
how  emancipated,  ix.  473. 
Slaying  an  officer,  when  treason,  ix.  408. 
Small  tithes,  what,  x.  33. 
Smuggler,  when  considered  a  trader,  i.  800. 
Smuggling,  "what,  ix.  106.  x 

prohibited  goods,  punished,  ix.  134. 
Socage,  guardian  in,  iv.  540. 
of  tenure  in,  ix.  378. 
Sodomy,  what,  ix.  158. 
Soil,  owner  of,  his  right  or  interest  in  the  common,  ii.  266. 

of  highway,  to  whom  it  belongs,  iv.  668. 
Soil  droit  fait  al  partie,  entry  of,  viii.  108. 
Sole  corporations  cannot  be  obligees,  vii.  248. 
Solemnization  of  marriage,  what,  vi.  462. 
Solicitor,  contracts  by,  i.  157. 
Soldiers,  who  are,  ix.  160. 

of  enlisting,  ix.  161. 
when  free  from  arrest,  ix.  166. 
of  quartering,  ix.  109. 
to  remove  during  elections,  ix.  173. 
how  far  may  exercise  trades,  ix.  187. 
officer's  authority  over,  ix.  189. 
liability  to,  ix.  189. 


GENERAL  INDEX.  715 

Soldiers,  probate  of  wills  of,  ix.  191. 
debts  of,  ix.  191. 
settlement  of,  ix.  191. 
Son  assault,  plea  of,  its  effect,  i.  375,  376. 
Sound  mind,  presumption  in  favour  of,  v.  30. 
Soundness  of  animals,  what  is,  i.  110,  117. 

Special  damages,  what  words  will  support  an  action  of  slander  without,  ix.   ■ 
plea  in  trespass,  what,  ix.  510. 
juries,  how  appointed,  v.  337. 
imparlance,  what.  vii.  520. 
pleas,  what,  vii.  541. 
verdict,  what,  x.  309. 

requisites  of,  x.  313. 
when  defective,  x.  313. 
Specialty,  what,  vii.  230. 

**    assumpsit  will  lie  on  a  promise  to  pay  a,  i.  397. 
debts,  how  to  be  paid  by  executor,  iv.  108. 
presumption  of  payment  of  a,  vi.  376. 
Specific  performance,  when  decreed  in 'equity,  i.  158. 
legacy,  what,  vi.  290.     See  Legacy. 

power  of  executor  over,  vi.  292. 
money  bequeathed,  when  a,  vi.  294. 

not,  vi.  294. 
stock  bequeathed,  when  a,  vi.  294. 

not,  vi.  : 
interest  of  money,  when  a,  vi.  290. 
notes,  when,  vi.  296. 
when  entitled  to  interest,  vi.  325. 
Speech,  when  publication  of,  is  libellous,  vi.  358. 
Spiritual  person,  who  is,  v.  478. 

court,  jurisdiction  of,  in  simony,  ix.  26. 

slander,  ix.  101. 
when  prohibition  lies  to,  ix.  103. 
defamation,  when  action  lies  for,  ix.  103. 

not  conusable  in  spiritual  court,  ix.  105. 
Spinster  is  a  good  addition,  vii.  11. 
Sports,  customs  relating  to,  iii.  32,  33. 
Stab,  meaning  of,  vi.  409. 
Stabbing,  meaning  of,  vii.  206. 
Stable,  ejectment  lies  for  a,  iii.  274. 
Stagnum,  effect  of  grant  of,  iv.  530. 
Stakeholder,  responsibility  of,  iv.  451. 
Stale  demand,  what,  vi.  387. 
Stamps,  what,  ix.  192. 

when  several  are  required,  ix.  193. 
time  of  making,  ix.  196. ^ 
when  a  fresh,  required,  ix.  198. 
when  not  required,  ix.  200. 
amount  and  denomination  of,  ix.  206. 
consequence  of  wanting,  ix.  209. 
on  policies  of  insurance,  when  required,  vi.  645. 
bills  and  notes,  when  required,  ix.  771. 
Standing  by  without  objection,  when  evidence  of  fraud,  iv.  391. 
Stanneries,  court  of,  ii.  783. 
State  may  contract,  i.  158. 

suits  by  or  against  a,  viii.  107. 

jurisdiction  of  courts  against  a,  ii.  798. 

court  may  enjoin  marshal  of  the  United  States,  when,  v.  210. 

courts,  writs  of  error  to,  ii.  800.   _ 

removal  of  actions  from,  ii.  810. 

jurisdiction  of,  under  the  laws  of  United  States,  li.H-b. 
laws,  when  rules  of  decision  in  courts  of  United  States,  a.  826. 
Statute,  what,  ix.  212  :  viii.  605. 
personal,  ix.  212. 
real,  ix.  212. 
mixed,  ix.  212. 


716  GENERAL  INDEX. 

Statute,  ancient,  what,  ix.  213. 
modern,  what,  ix.  213. 
how  made,  ix.  213. 
requisites  of,  ix.  215. 
publication  of,  ix.  218. 
things  incident  to,  ix.  219. 
when  it  begins  to  take  effect,  ix.  220. 
how  long  to  continue  in  force,  ix.  223. 
power  of  a,  ix.  228. 
public,  what,  ix.  230,  231. 
private,  what,  ix.  230,  231. 
affirmative,  what,  ix.  234. 
negative,  what,  ix.  234. 
who  is  to  construe,  ix.  237. 
rules  of  construction  of,  ix.  238,  255. 
contacting,  how  construed,  ix.  257. 
violation  of,  how  punished,  ix.  258. 
private,  ix.  261. 
pleading  a,  how,  ix.  259,  202. 
effect  of  misrecital  of,  in  pleading,  ix.  263. 
surplusage  in  pleading  a,  ix.  266. 
of  frauds,  what  agreements  are  within,  i.  170. 
promises  by  executors,  &c,  i.  172. 

to  pay  the  debt  of  another,  i.  173. 
made  in  consideration  of  marriage,  i.  176. 
limitations,  what,  vi.  316. 

do  not  bind  the  state,  viii.  90,  94. 
mortmain,  effect  of,  vi.  7. 
roll,  what,  ii.  673. 
staple,  when  execution  may  issue  on,  iii.  667,  669,  670. 

difference  between  statute  merchant  and,  iii.  670. 
merchant,  what,  iii.  670. 

against  whom  an  execution  may  be  granted  on  a,  iii.  673. 
what  things  are  liable  on  a,  iii.  675. 
how  vacated,  iii.  680. 
when  the  description  of  an  offence  in  an  indictment  must  follow  the,  v.  90. 
Steamboat  conductors  liable  as  common  carriers,  ii.  152. 
Stellionatus,  what,  vii.  103. 
Steward,  when  considered  a  mariner,  ii.  740. 
Stock  of  cattle,  what  passes  by  a  bequest  of,  vi.  194. 
upon  a  farm,  what,  vi.  194. 
in  iron  works,  what,  vi.  194. 

the  funds,  what  passes  by  a  bequest  of,  vi.  194. 
when  legacy  of,  is  adeemed,  vi.  207. 

not  adeemed,  vi.  207. 
specific,  vi.  294. 
not  specific,  vi.  294. 
companies,  liability  of  members  of,  vi.  578. 
Stock,  what,  x.  536. 

Stocks,  mortgagee  of,  must  have  possession,  vii.  181. 
Stockholder,  when  he  can  vote,  ii.  459. 
Stoppage  in  transitu,  when  goods  sent  to  bankrupt  may  be  stopped  while,  i.  734. 

effect  of,  vi.  761. 
Stranding,  what,  vi.  676. 
Stranger,  act  of,  when  good,  ii.  341. 

legatees,  when  not  entitled  to  a  maintenance,  vi.  330. 
when  rent  cannot  be  reserved  to  a,  viii.  460. 
tys,  property  in,  viii.  41,  42. 
Street,  effect  of  granting  land  bounded  by  a,  ii.  557,  589. 
Striking  off  the  roll,  when  attorneys  may  be  struck  off,  i.  509. 
Strumpet,  no  action  lies  for  calling  a  woman  a,  ix.  42. 
Stud-horse,  when  a  nuisance,  vii.  223. 
Subject,  what,  ix.  3'.)'.). 
Subjects,  who  are,  viii.  45. 

owe  allegiance,  viii.  47. 
Submission,  matter  in  controversy,  i.  303. 


GENERAL   INDEX.  717 

Submission,  different  kinds  of,  i.  306. 

parties  to  the,  i.  313. 
Subornation  of  perjury,  what,  vii.  424. 
Subpoena  in  Chancery,  by  whom  invented,  ii.  685. 

is  a  compulsory  process,  iii.  511. 
Subscribing  witness,  when  to  be  produced,  iii.  596. 
Subsequent  condition,  what,  ii.  291. 

remainders,  that  arise  on,  viii.  380. 
distinction  between  conditions  precedent  and,  ii.  291. 
Subsidies  of  tonnage,  what.  ix.  122. 
Substitution,  when  creditor  entitled  to,  iv.  115. 
Substitutional  legacies,  what,  vi.  298. 
Subtraction  of  tithes,  suit  for,  x.  76. 

in  spiritual  court,  x.  76. 
Chancery,  x.  82. 
action  upon  the  statute  against,  x.  91. 
Succession,  what  things  corporations  may  take  by,  ii.  454. 

of  the  crown,  treason  to  deny  the  power  of  parliament  respecting  the,  ix. 
415. 
Successively,  meaning  of,  vi.  156. 
Successor,  meaning  of,  in  a  deed,  vi.  16. 

required  in  grants,  when,  iv.  507. 
bound  by  ecclesiastical  lease,  v.  501. 
Suing  out  a  writ  prevents  the  running  of  the  act  of  limitations,  when,  vi.  397 
Suit  in  spiritual  court  for  subtraction  of  tithes,  x.  70. 

a  court  of  equity  for  subtraction  of  tithes,  x.  82. 
Summons  and  severance,  what,  ix.  267. 

judgment  in,  ix.  267. 

when  given,  ix.  268. 
when  summons  must  issue  before  judgment  in,  ix.  2 
when  judgment  to  be  prayed  fur  in,  ix.  268. 
in  what  actions,  ix.  270. 
when  it  will  prevent  an  abatement,  i.  12. 
to  be,  iv.  41. 
of  parliament,  how  made,  ii.  652. 
Sunday,  what  is,  i.  601. 

arrest  in  civil  case,  void  when  made  on,  i.  601. 

penalty  for  travelling  on,  ii.  162. 

what  is  profanation  of,  iv.  637. 

process  may  be  executed  on,  when,  iv.  639. 

contract  made  on,  when  good,  iv.  638. 

when  void,  iv.  638,  640. 
apprentice  cannot  be  compelled  to  work  on,  vi.  513. 
when  to  be  computed,  viii.  622. 
whether  sheriff  can  execute  a  writ  on,  viii.  701. 
Superior  officer  liable  for  acts  of  inferior,  vii.  319. 
Supersedeas,  what,  ix.  274. 

several  kinds  of,  ix.  274. 

who  may  award  writ  of,  ix.  275. 

in  what  cases  awarded,  ix.  277. 

what  writ  is  a,  by  implication,  ix.  283. 

to  what  time  writ  of  error  relates  as  a,  ix.  290. 

effect  of,  ix.  291. 

disobedience  to,  how  punished,  ix.  293. 

when  a  certiorari  is  a,  ii.  178. 

not,  ii.  179. 
effect  of,  ii.  623. 

when  a  writ  of  error  is  not  a,  iii.  354. 
Superstitious  use,  what  is,  ii.  195. 
Supplicavit,  effect  of  writ  of,  ix.  297. 
Supra  protest,  acceptance,  vi.  807. 
Supreme  Court,  established,  ii.  793. 
organization,  ii.  796. 

judges,  how  appointed,  ii.  796. 
quorum,  ii.  796. 
when  holden,  ii.  796. 


718  GENERAL   INDEX. 

ipreme  Court,  jurisdiction  of,  ii.  797. 

civil,  ii.  797. 

original,  ii.  797. 
appellate,  ii.  799. 
by  error  to  C.  C,  ii.  799. 
appeal,  ii.  800. 
error  to  state  court,  ii.  800. 
certificate,  ii.  801. 
mandamus,  &c,  ii.  802. 
criminal,  ii.  802. 
of  U.  S.  may  bail  in  criminal  cases,  -when,  i.  538. 
error  to,  iii.  307. 
Surcharge  and  falsify,  when  mortgagor  allowed  to,  vii.  169. 
Surety  of  the  peace,  what,  ix.  294. 

when  required,  ix.  294.  - 

who  may  ask,  ix.  295  ;  v.  397. 

in  what  cases  granted,  ix.  296. 

against  whom  it  may  be  required,  ix.  296. 

may  be  required  by  chancery,  ix.  297. 

King's  Bench,  ix.  298. 
justice  of  the  peace,  ix.  301. 
.     what  is  a  forfeiture  of  recognisance  for,  ix.  303. 
how  recognisance  for  keeping,  discharged,  ix.  305. 
good  behaviour,  what,  ix.  307. 

when  granted,  ix.  307. 

how  recognisance  for  keeping,  discharged,  ix.  309. 
remedy  against  principal,  vii.  257. 

each  other,  vii.  257. 
when  not  liable,  vii.  257. 

when  he  can  prove  against  a  bankrupt's  estate,  i.  712,  809,  810. 
Surplus  aiusing  from  mortgaged  property,  to  whom  it  belongs,  iv.  84. 
of  estate  of  testator,  to  whom  it  belongs,  iv.  86. 
of  bar.krupt  estate,  how  disposed  of,  i.  771. 
Surplusage  in  declaration,  cured  by  verdict,  i.  248. 
pleading,  effect  of,  vii.  460,  601. 

a  statute,  effect  of,  ix.  226. 
Surprise,  when  a  new  trial  will  be  granted  on  the  ground  of,  ix.  623. 
Surrender  of  copyhold  lands,  ii.  389. 

when  requisite,  ii.  389. 
when  supplied  in  equity,  ii.  392. 
dormant,  what,  ii.  394. 
who  may,  ii.  396. 
who  may  accept  a,  ii.  397. 
what  will  amount  to  a,  ii.  398. 

construction  when  presentment  and  admittance  differ  from,  ii.  400. 
operation  of,  ii.  401. 
who  may  take  by  operation  of,  ii.  401. 
what  shall  pass  by,  ii.  402. 
what  estate  passes  by,  ii.  403. 
of  a  charter,  effect  of,  ii.  484. 
by  infant,  when  void,  v.  128. 
of  leases,  effect  of,  v.  657. 
in  fact,  v.  657. 
law,  v.  661. 
when  to  be  made,  v.  492. 
upon  what  estate  it  operates,  v.  659,  665. 
with  regard  to  leases  infuturo,  v.  665. 
Surviving  obligor,  liability  of,  vii.  250,  252. 
Survivor,  effect  of  devise  to,  vi.  116,  268. 
Survivorship,  effects  of  in  joint-tenancies,  v.  279. 

takes  place,  when,  v.  280. 
Survey,  when  evidence,  iii.  584. 
Surveyor-general,  duties  of,  viii.  126. 
Survivorship,  right  of,  by  the  customs  of  London,  iii.  43. 
Suspension,  what,  iv.  144. 

of  rent,  when  there  is  a,  viii.  523. 


GENERAL   INDEX.  719 

Suspension  of  a  statute,  effect  of,  ix.  225. 

Swainmote,  court  of  ii.  765. 

Swans,  kind's  prerogative  over,  viii.  24. 

Swearing,  offence  of,  iv.  641. 

Swindler,  when  it  is  a  libel  to  charge  one  with  being  a,  vi.  339. 

Stv,  when  a  nuisance,  vii.  229. 

T. 

Table  of  prohibitions  and  restrictions  of  goods  outwards,  ix.  134. 
Tacking,  doctrine  of,  vii.  104,  136. 

notice  of,  vii.  110. 
Tail,  estate  in,  what,  ill-  428. 
of  what  things,  iii.  431. 
requisites  to  create  an  estate,  iii.  433. 
of  the  several  sorts  of  estates,  iii.  437. 
male,  iii.  437. 
female,  iii.  437. 
general,  iii.  437. 
special,  iii.  438. 

when  tenant  in,  may  charge  his  estate,  iii.  441. 
how  estates  created,  vi.  31. 
Taking,  what,  to  constitute  larceny,  iv.  179.  181.     See  Larceny. 
Tales,  when  grantable,  v.  335. 
Talesmen,  who  are,  v.  335. 

qualifications  of,  v.  336. 

persons  not  by-standers  may  be  summoned  as,  v.  337. 
Tallage,  what,  ix.  113. 
Taxation  of  costs,  how  made,  ii.  539. 
Taxes,  covenants  to  pay,  effect  of,  ii.  579. 
when  to  be  paid  by  lessee,  v.  707. 
what  are,  v.  707. 

who  is  bound  to  pay,  viii.  510,  511,  513. 
Teamsters  are  common  carriers,  ii.  151. 
Technical  terms,  effect  of,  viii.  151. 

when  not  required,  viii.  327. 
when  required  in  an  indictment,  v.  68. 
Tenancy  in  common,  nature  of,  v.  239. 

how  created,  v.  248,  251. 
difference  between  joint-tenancy  and,  v.  250. 
dower  in,  iii.  202. 
Tenant,  who  is  a,  v.  669. 

in  tail,  leases  by,  v.  448. 

conveyances  by,  v.  556. 
discontinuances  by,  iii.  140. 
after  possibility  of  issue  extinct,  who  is,  m;_448. 

power  of,  iii.  451. 

by  the  curtesy,  who  is,  iii.  5.     See  Curtesy- 
may  distrain,  when,  iii.  165. 
leases  by,  v.  556. 
for  life,  leases  by,  v.  557. 

may  distrain,  when,  iii.  165. 
rights  and  duties  of,  iiL  471.  m         ># 

must  pay  interest  on  mortgaged  premises,  vn.  7o,  /4. 
by  statute-merchant,  how  protected,  iii.  678. 
right,  what,  v.  077. 

to  the  praicipe,  who  is,  iv.  294 ;  viii.  435. 
in  capite,  who  is,  ix.  368. 
in  "oramon,  who,  v.  239,  240. 

may  be,  v.  241. 
leases  by,  when  goodly.  561. 
may  distrain,  when,  iii.  165. 

be  guilty  of  forcible  entry  and  detainer,  r. .  328. 
property  of,  may  be  sold  under  execution,  when,  iii.  702. 
how  far  he  can 'lease,  viii.  258,  268. 
when  he  may  enter,  iii.  23. 
Tender,  what,  ix.  310. 


720  GENERAL   INDEX. 

Tender,  by  whom  to  be  made,  ix.  311. 
to  whom,  ix.  311,  326  ;  vii.  176. 
what  is  a  good,  ix.  313;  vii.  176,  177. 
manner  of  making,  ix.  313. 
of  bank-notes,  when  good,  ix.  314,  319  ;  vii.  176. 
conditional,  not  good,  ix.  315. 
thing  offered  in,  ix.  316. 
of  greater  sum  than  is  due,  effect  of,  ix.  317. 
of  foreign  coin,  effect  of,  ix.  318. 
offer  to  pay,  when  not  a,  ix.  318. 
treasury  notes,  when  a  good,  ix.  319. 
at  what  place  must  be  made,  ix.  319. 
in  what  state  must  be  made,  ix.  320. 
of  ponderous  articles,  how  made,  ix.  320. 

a  check,  when  sufficient,  ix.  315. 
when  to  be  pleaded,  ix.  321. 
effect  of  a  plea  of,  vii.  640. 
consequences  of  a,  ix.  328,  331 
plea  of,  ix.  332  ;  vii.  640. 

in  what  cases  a,  may  in  general  be  made,  ix.  350 
of  amends,  ix.  361. 
of  mortgage  debt,  effect  of,  vii.  175. 
of  rent,  when  to  be,  viii.  469. 
where  to  be,  viii.  469. 
personal,  when  good,  viii.  469,  470. 
effect  of,  viii.  484.  , 

Tenement,  ejectment  will  lie  for  a,  iii.  276. 
Tenendum,  what,  iv.  218. 
Tenet,  when  waste  lies  in  the,  x.  454. 
Tenuit,  when  waste  lies  in  the,  x.  456. 
Tense,  when  words  in  past  or  future,  are  slanderous.  jx,  0p 
Tenure,  what,  ix.  361. 

meaning  in  the  United  States,  ix.  361. 
by  service  in  the  general,  ix.  362. 

what  service,  ix.  363.     See  Service. 
of  whom,  ix.  365. 
in  capite,  what,  ix.  368. 

frank-almoign,  ix.  370. 
by  divine  service,  ix.  371. 
knight's  service,  ix.  372. 
escuage,  ix,  374. 
grand  serjeantry,  ix.  375. 
petit  serjeantry,  ix.  376. 
by  castle  guard,  ix.  377. 
cornage,  ix.  377. 
burgage,  ix.  378. 
in  socage,  ix.  378. 
Terms  fur  years,  devises  of,  vi.  72. 
meaning  of,  vi.  72. 
to  attend  inheritance,  what,  v.  435 ;  x.  168. 
in  gross,  how  limited,  x.  173. 
Terre-tenant,  when  scire  facias  will  lie  for  or  against,  viii.  611. 
Terrier,  (old,)  when  evidence,  iii.  577 
Territorial  courts,  ii.  820. 

Florida,  ii.  820. 
Wisconsin,  ii.  820. 
Iowa,  ii.  821. 
Territories  of  the  United  States,  jurisdiction  of  courts  in,  i.  815,  816. 
Testament,  what,  vi.  5  ;  x.  479.     See  Will. 
Testator,  who  is,  x.  480. 

must  be  capable  to  make  a  will,  x.  485. 
intend  to  make  a  will,  x.  485. 
have  a  free  mind,  x.  486. 
Fheft,  charge  of,  actionable,  ix.  38. 
Thief,  moaning  of,  ix.  39. 
Threats  do  not  amount  to  an  assault,  i.  371. 


GENERAL  INDEX.  721 

Three  lives,  leases  not  to  exceed,  v.  500. 

Timber,  injunction  lies  to  restrain  the  cutting  down  of,  v.  211. 

Time  how  computed,  i.  804 ;  viii.  215. 

on  foreclosure  of  a  mortgage,  vii.  161. 
in  cases  of  rent,  viii.  460,  466. 
when  a  tender  ought  to  be  made,  ix.  321. 

rent  ought  to  be  demanded,  viii.  486. 
during  which  a  distress  may  be  made,  iii.  177. 
for  payment,  when  enlarged,  vii.  162. 
effect  of  lapse  of,  on  rights  of  property,  iii.  618. 
within  which  a  condition  may  be  performed,  ii.  323. 
in  pleading,  not  material  in  a  declaration,  when,  vii.  477. 
how  to  be  stated  in  a  plea,  vii.  571. 
when  not  traversable,  vii.  579. 
how  to  be  set  out  in  an  indictment,  v.  79. 

in  an  indictment  for  perjury  it  must  be  correctly  stated,  vii.  438. 
Tithes,  what,  x.  5. 

origin  of,  x.  5. 
nature  of,  x.  5. 
what  things  pay,  x.  7. 
who  liable  to  personal,  x.  9. 
what  predial  things  pay,  x.  11. 
agistment,  how  paid,  x.  12. 
of  corn,  x.  16. 
hay,  x.  16. 
wood,  x.  17. 

young  of  animals,  X.  24. 
eggs,  x.  24. 
wool,  x.  25. 
fish,  x.  26. 
honey,  x.  26. 
bees,  x.  26. 
milk,  x.  26. 
to  whom  in  general,  to  be  paid,  x.  26. 

parochial,  to  be  paid,  x.  27. 
right  to  a  portion  of,  in  a  parish,  x.  32. 
by  whom  to  be  paid,  x.  33. 
what  shall  be  considered  small,  x.  33. 

how  far  custom  of  a  parish  is  to  be  regarded  in  setting  out,  x.  36. 
time  and  manner  of  paying  personal,  x.  39. 

setting  out  predial,  x.  39. 
paying  mixed,  x.  44. 

tithes  due  by  custom,  x.  45. 
composition  real,  x.  49. 
when  payment  of,  suspended,  x.  46. 

when  a  modus  is  a  real  composition  of,  x.  50.     See  Modus. 
of  a  prescription  in  non  decimando,  x.  63. 
discharge  of,  by  grant,  x.  65. 
bull,  x.  65. 
order,  x.  66. 

unity  of  possession,  x.  70. 
agreements  and  leases  concerning,  x.  72. 
suit  in  spiritual  court  for  subtraction  of,  x.  76. 

Chancery  for  subtraction  of,  x.  82. 
when  prohibition  lies  to  a  suit  in  spiritual  court  or  subtraction  of,  x.  79. 
suit  in  ecpiity  to  establish  a  modus,  x.  90. 
action  upon  the  statute  against  subtraction  of,  x.  91. 
Title,  when  fraud  vitiates,  iv.  383.  > 

deeds,  effect  of  deposit  of,  vii.  35. 

mortgagee  not  bound  to  disclose  his,  vii.  131.  _ 

to  a  bill  of  exchange,  may  be  transferred  by  a  person  having  none,  vi.  i  92. 
no  part  of  a  statute,  ix.  219. 
To  farm  let,  effect  of  these  words  in  a  lease,  v.  601. 
Tolls  for  use  of  market,  when  due,  iv.  158. 

who  exempt  from,  iv.  100. 
Tomb-stones,  who  shall  have  an  action  for  defacing  them,  iv.  OIL. 

Vol.  X.— 91  3  P 


722  GENERAL  INDEX. 

Tonnage,  when  granted,  viii.  37. 

duty  on,  ix.  118,  122. 
Tonsura  -prima,  when  it  may  be  granted  as  copyhold,  ii.  387. 
Tort,  in  an  action  for  a,  defendant  cannot  in  general  be  held  to  bail,  i.  543. 
when  corporation  liable  for  a,  ii.  450. 
jurisdiction  of  District  Court,  in  cases  of,  ii.  816. 
Total  loss,  effect  of,  vi.  680. 

what  makes  a,  vi.  683. 
Tout  temps  prist,  effect  of  plea  of,  ix.  335. 
Towing,  right  of,  ix.  483. 
Town  record,  when  evidence,  iii.  577. 
Township,  effect  of  division  of,  ix.  505. 
Trade  not  to  be  followed  without  an  apprenticeship,  vi.  521. 

manner  of  exercising,  by  apprentice  within  the  statute  5  Eliz.  c.  4,  vi.  523. 

what  kind  of  service  apprentice  must  render  to  entitle  him  to  follow  a,  vi.  524. 

offence  of  following  a,  without  qualifications,  vi.  525. 

conviction  for  following  a,  without  qualifications,  vi.  526. 

protection  of,  favoured,  vi.  552. 

regulated  by  Congress,  vi.  552. 

agreements  in  restraint  of,  when  void,  i.  433,  434 ;  ii.  300. 

not  void,  ii.  300. 
how  far  soldiers  can  exercise,  ix.  187. 
fixtures,  what  are,  x.  433. 
Tradesman,  slander  against,  ix.  48,  52. 

when  liable  to  an  action  for  injuries  committed  by  him  as  such,  i.  134. 
Trading  of  bankrupt,  what,  i.  630,  799. 

effect  of  illegal,  on  insurance,  vi.  705. 
Traitor  cannot  make  a  will,  x.  484. 
Transitory  actions,  what  are,  i.  78. 
Transitus,  when  at  an  end,  vi.  761. 
Translation  of  legacy,  what,  vi.  198. 
Transportation,  punishment  of,  iv.  193. 
Traverse,  what,  vii.  552. 

nature  of,  vii.  552. 
when  permitted,  vii.  556. 
required,  vii.  558. 

there  may  be  a  traverse  upon  a,  vii.  562. 
to  what  point  there  may  be  a,  vii.  566. 
of  office,  what,  viii.  107. 
Treason,  derivation  of,  ix.  379. 
what,  ix.  380. 
who  may  be  guilty  of,  ix.  381. 

husband  of  queen  regnant,  ix.  382,  386. 
madman,  ix.  382. 
alien,  ix.  382. 
what  will  excuse,  ix.  383. 
against  whom,  may  be  committed,  ix.  383. 
of  high,  in  general,  ix.  384. 
when  writing  will  be  considered,  ix.  389. 
words  are  not  an  overt  act  of,  ix.  390. 
constructive,  what,  ix.  391. 
■violation  of  certain  personages,  when,  ix.  393. 
levying  war,  when,  ix.  394. 
adhering  to  king's  enemies,  is,  ix.  398. 
counterfeiting  money  is,  ix.  402. 
bringing  counterfeit  money  in  the  realm,  is,  ix.  407. 
slaying  certain  officers,  is,  ix.  408. 
extolling  or  maintaining  the  see  of  Home,  is,  ix.  409. 
refusing  to  take  oath  of  supremacy,  when,  ix.  410. 
putting  a  popish  bull  in  ure  is,  ix.  412. 
denying  the  power  of  parliament  to  limit  the  succession  of  the  crown  is,  ix. 

415. 
affirming  that  a  person  not  in  the  succession,  as  by  law  established,  has 

right  to  the  crown,  is,  ix.  415. 
endeavouring  to  hinder  the  person  next  in  succession,  as  by  law  established, 
from  succeeding  to  the  crown,  is,  ix.  415. 


GENERAL   INDEX.  723 


Treason,  corresponding  with  the  pretender  is,  ix.  416. 

a  rebel,  is,  is.  41G. 
of  petit,  in  general,  ix.  416. 
indictment  for,  ix.  420. 
trial  of,  ix.  425. 
evidence  of,  ix.  428. 
judgment  in  cases  of,  ix.  433, 
it  is  actionable  to  charge  one  with,  ix.  33. 
authority  of  justices  of  the  peace  in  cases  of,  v.  404. 
commission  of,  forfeiture  of  copyhold,  ii.  418. 
Treasure  trove,  property  in,  viii.  41. 
>'  Treasury  notes  when  a  good  tender,  ix.  319. 

Treble  costs,  when  allowed,  ii.  498. 
what,  ii.  500. 
damages,  when  allowed,  iii.  81. 
Tree,  what,  ix.  40. 

who  entitled  to  felled,  ix.  481,  498. 
branches  of,  ix.  481. 
on  boundaries,  ix.  498. 
when  a  subject  of  larceny,  iv.  176. 

injunction  will  lie  to  restrain  the  cutting  down  of,  v.  211. 
waste  to,  x.  424,  428. 

when  to  be  cut  down  without  committing  waste,  x.  436. 
Trespass,  what,  ix.  438. 

derivation  of,  ix.  438. 

on  the  case,  what,  ix.  438. 

difference  between  case  and,  ix.  440 

when  an  action  of,  lies,  ix.  440,  463. 

ab  initio,  what,  ix.  448. 

to  the  person,  ix.  452,  462. 

personal  property,  ix.  453,  472. 
real  property,  ix.  458,  480. 
buildings,  ix.  487. 
action  of,  ix.  492. 

by  whom  brought,  ix.  492. 

in  general,  ix.  492. 
for  injuries  done  to  real  property,  ix.  496. 
in  what  court  an  action  of,  may  be  brought,  ix.  499. 
pleadings  in,  ix.  501. 
form  of  writ  of,  ix.  501. 
declaration  in,  ix.  503. 
plea  in,  ix.  514. 

abatement,  ix.  514. 
chief,  ix.  515. 
replication  in,  ix.  530. 
evidence  in,  ix.  540. 
damages  in,  ix.  547. 

when  money  may  be  tendered  in  an  action  of,  ix.  358. 
executors  cannol  maintain,  iv.  125. 
injunction  will  lie  for,  v.  198. 

not,  v.  198. 
Trespasser  ab  initio,  who  is  a,  ix.  448. 
Trials,  kinds  of,  ix.  550. 

by  the  court,  ix.  551. 

general  rules  relating  to,  ix.  551. 

upon  inspection,  ix.  552. 

examination  of  witnesses,  ix.  555. 
by  record,  ix.  556. 
certificate,  ix.  559. 
jury,  ix.  564. 
at  bar,  ix.  566. 

nisi  prius,  ix.  569. 
notice  of,  ix.  572. 
of  putting  off,  ix.  575. 
manner  of  conducting,  ix.  580. 
of  new,  ix.  582.     See  New  trial. 


724  GENERAL   INDEX. 

Trials,  when  put  off  pro  defectu  juratorem,  v.  334. 
when  to  be  per  medietatem  linguae.,  v.  359. 
in  cases  of  usury,  x.  304. 
Trover,  what,  ix.  629. 

when  an  action  of,  will  lie,  ix.  630. 
what  is  a  conversion  and,  ix.  631. 
parties  to  an  action  of,  ix.  640. 
for  what  injuries,  lies,  ix.  649. 
lies  for  a  dog,  when,  ix.  649. 

geese  which  were  once  wild,  ix.  650. 
animals  force  naturce  which  have  been  reclaimed,  ix.  650. 
does  not  lie  for  a  negro,  in  England,  ix.  649. 
an  apprentice,  ix.  649. 
a  servant,  ix.  649. 

dog,  when,  ix.  650. 
animals  force  naturce,  ix.  650. 
oysters  planted  in  a  public  river,  ix.  650. 
lies  against  executors,  when,  ix.  667. 

joint  defendants,  when,  ix.  666. 
infant,  when,  ix.  666. 
constable,  when,  659. 
common  carrier,  when,  ix.  636,  660. 
•pleadings  in,  ix.  667. 
declaration  in,  ix.  668. 
plea  in,  ix.  672. 
evidence  in,  ix.  677. 
verdict  in,  ix.  681. 
damages  in,  ix.  681. 
judgment  in,  ix.  681. 

will  lie  by  one  joint-tenant  against  another,  when,  v.  306. 
when  executors  may  maintain,  iv.  125. 
must  be  brought  against  husband  and  wife,  for  the  conversion  of  the  wife, 

ii.  62. 
when  money  can  be  tendered  in  an  action  of,  ix.  359. 
act  of  limitation  runs  in,  vi.  374. 
when  act  of  limitation  begins  to  run  in,  vi.  384. 
Truce,  what,  viii.  63. 

difference  between  a  league  and  a,  viii.  63. 
Truckmen  are  common  carriers,  ii.  151. 
"  True  bill,"  when  required,  v.  53. 
Trusts,  what,  x.  188. 

nature  of,  x.  190. 
general  rules  relating  to,  x.  190. 
what  amounts  to  a  declaration  of,  x.  193. 
is  a  resulting,  x.  199. 

trust  by  implication,  x.  199. 
difference  between  executed  and  executory,  x.  190. 
act  of  limitations  does  not  operate  on  express,  x.  192. 
not  liable  to  escheat,  x.  191. 
Becret,  not  recognised,  x.  193.  • 

when  to  be  executed,  x.  225. 
curtesy  not  allowed  in,  iii.  7,  12. 
dower  not  allowed  in,  iii.  195. 
property  of  wife,  how  managed,  ii.  71. 
act  of  limitation  does  not  in  general  run  against  a,  vi.  378. 
Avhen  act  of  limitation  runs  against  a,  vi.  379,  385. 
jurisdiction  of  Chancery,  in  cases  of,  ii.  688. 
Trustees  may  distrain,  when,  iii.  165. 

cannot  resign  their  trust,  when,  iv.  517. 
lease  made  by,  when  good,  v.  574. 
what  act  of,  shall  defeat  a  trust,  x.  217. 
when  guilty  of  a  breach  of  trust,  x.  213. 
how  far  favoured,  x.  247. 
liability  of,  x.  247.  253.     See  Liability. 
for  neglect,  x.  250. 
interest,  x.  250. 


GENERAL   INDEX.  725 

Trustees,  liability  of  for  using  trust  money,  x.  251. 

misapplying  funds,  x.  251. 
buying  trust  estate  at  an  undervalue,  x.  253. 
letting  insolvent  co-trustee  have  trust  funds,  x.  253. 
mixing  up  trust  funds  with  his  own,  x.  253. 
how  far  answerable  fur  each  other,  x.  255. 

removed,  x.  258. 
compensation  of,  x.  260. 
suits  by  and  against,  x.  261. 
corporations  may  be,  x.  262. 
when  executors  will  be  considered,  x.  262. 
who  shall  be  considered,  x.  262. 
Truth,  when  no  justification  of  a  libel,  vi.  350. 

to  convict  defendant  of  perjury,  he  must  have  been  sworn  to  depose  the,  vii.  425. 
Turbary,  common  of,  ii.  260. 

Turning  wife  out  of  doors,  liability  of  husband  for,  ii.  44. 
Turnkey,  liability  of  jailer  for  acts  of,  iv.  470. 
Tutor,  who  is,  iv.  539. 
Twenty-one  years,  when  leases  are  not  to  exceed,  v.  500. 

years,  effect  of  lapse  of,  on  debts  secured  by  specialty,  vii.  275. 
Tythes,  what,  x.  5,     See  Tithes. 

u. 

Umpire,  how  chosen,  and  his  power,  i.  317. 

to  make  an  award,  i.  322. 
Uncertainty  in  declaration  not  cured  by  verdict,  i.  247. 
an  award  renders  it  void,  i.  333. 
a  deed,  effect  of,  iv.  521. 
devise,  effect  of,  vi.  133,  144. 
Uncore  prist,  plea  of,  ix.  334. 

with  tout  temps  prist,  effect  of,  ix.  335. 
Under-sheriff,  appointment  of,  viii.  671.     See  Sheriff. 
implied  authority  of,  viii.  671. 
covenants  between  high  sheriff  and,  viii.  673. 
what  acts  may  be  done  by,  viii.  675. 
how  appointed,  viii.  678. 
Underlease,  what,  v.  433. 
Undertenant,  rights  of,  v.  708. 
Underwood,  what,  x.  21. 

United  States  when  entitled  to  a  preference  out  of  bankrupt's  estate,  i.  809,  810. 

priority  of  payment,  viii.  91. 
are  not  bound  by  their  agents,  when,  vi.  560. 
no  costs  against,  ii.  524. 
Unity  of  possession,  how  destroyed,  v.  305. 
Universities,  what,  x.  101. 

of  their  courts  and  privileges,  x.  102. 

conusance  of  jurisdiction,  how  to  be  demanded,  x.  106. 

by  whom  to  be  demanded,  x.  106. 
of  their  privileges  with  regard  of  presentation  to  the  livings  of  papists, 
x.  107. 
Unlawful  contract,  when  void,  i.  443,  444. 

debts  founded  on  an,  cannot  be  proved  in  bankruptcy,  i.  715. 
consequences  of  homicide  committed  in  the  performance  of  an,  act,  vii.  2<>i 
Unlicensed  players,  how  punished,  vii.  224. 
Usage  of  a  corporation,  when  lawful,  ii.  469,  475. 
trade,  effect  of,  iii.  20,  28,  29,  608,  009. 
how  proved,  iii.  21. 
may  serve  to  explain  a  statute,  ix.  246. 
Usance,  what,  vi.  766. 
Use,  no  dower  in  a,  iii.  195. 

and  occupation,  action  of,  viii.  503. 

does  not  lie  against  purchaser,  viii.  505. 
no  action  lies  for  the,  of  a  house  let  for  the  uses  of  prostitution, 
viii.  507. 

3p2 


7^6  GENERAL   INDEX. 

Use  and  occupation,  an  action  lies  for,  against  an  assignee  of  a  lease  under  beal,  viii.  507. 

when  an  action  lies  for,  viii.  508. 
Useful,  patent  must  be  granted  for  something,  viii.  140. 
Uses,  what,  x.  111. 

incidents  of,  x.  111. 
origin  of,  x.  113. 
alienable,  x.  113. 

property  of  an  estate  in,  at  common  law,  x.  113,  114. 

by  statute  x.  115. 

is  descendible,  x.  119. 
devisable,  x.  122. 
not  extendible,  x.  124. 
forfeitable,  x.  124. 
liable  to  dower,  x.  124. 
inconveniences  of,  x.  125. 

alteration  in  conveyances  to,  by  stat.  27  H.  8,  c.  10,  x.  126. 
of  the  several  sorts  of  conveyances  to,  x.  129. 
deeds  declaring  the,  of  feoffments,  x.  130. 

fines,  x.  130. 
recoveries,  x.  130. 
who  may  declare,  x.  130. 
to  whom,  may  be  declared,  x.  132. 
how  declared,  x.  133. 
when  to  be  declared,  x.  134. 
in  what  cases  averments  may  be  made  of,  x.  135. 
what  consideration  necessary  to  a  covenant  to  stand  seised  to,  x,  140. 
by  what  words  a  man  may  covenant  to  stand  seised  to,  x.  144. 
several  kinds  of,  x.  149. 
in  possibility,  x.  149. 
cases  out  of  the  statute  of,  x.  167. 
terms  in  gross  may  be  limited  to,  x.  173. 
resulting,  what,  x.  176. 
by  implication,  x.  176. 
of  shifting,  x.  184. 
manner  of  pleading,  x.  187. 
and  trusts,  x.  111.     See  Trusts. 
Usual  covenants  in  a  lease,  what,  v.  670. 
Usura  maritime/,,  what,  vi.  749. 
Usurious  contract,  how  proved,  vii.  179. 

debt  cannot  be  proved  in  bankruptcy,  i.  714. 
Usury,  what,  vii.  239  ;  x.  264. 

at  common  law,  what,  x.  264. 
by  statute,  x.  265. 

an  agreement  required  to  constitute,  x.  272. 
what  contract  is  affected  with,  x.  273,  274. 
charge  of  commissions  when  not,  x.  281. 

it  is,  x.  281. 
fair  purchase  of  a  bond  or  note  is  not,  x.  281. 
when  complete,  x.  372. 
to  constitute,  there  must  be  a  loan,  x.  284. 

an  unlawful  interest  reserved,  x.  284. 

agreement  that  the  money  shall  be  returned, 

x.  284. 
intention  to  violate  the  law,  x.  284. 
the  contract  must  be  usurious  in  its  inception,  x.  283. 
what  hazard  wil1  take  the  contract  out  of  the  statute  of,  x.  285. 
in  what  cases  securities  shall  be  avoided  in  consequence  of,  x.  287. 
relief  given  on  contracts  tinctured  with,  x.  293. 
how  far  securities  affected  by,  x.  295. 
pleadings  in  cases  of,  x.  299. 
trial  and  evidence  in  cases  of,  x.  304. 
Utensils,  what  passes  by  a  bequest  of,  vi.  194. 
Uttering  forged  instrument,  how  punished,  iv.  373. 


GENERAL  INDEX.  727 


V. 

Vagrant,  words  charging  one  to  be  a,  are  actionablo,  ix.  44. 
Value  of  vessel  in  cases  of  average,  how  ascertained,  vi.  021. 
freight  in  similar  cases,  vi.  021. 
received,  effect  of  these  words  in  a  bill,  vi.  781,  831. 
Variance,  what  is  a,  vii.  438. 

when  pleadable,  vii.  475. 

outlawry  may  be  reversed  for,  vii.  352. 

between  declaration  and  evidence,  when  fatal,  vii.  497 

writ  and  declaration,  vii.  490. 
rules  as  to,  in  actions  ex  delicto,  vii.  505. 
when  fatal  in  an  indictment,  v.  79,  88. 
Venire  facias,  object  of,  v.  315. 

when  to  be  directed  to  the  coroner,  v.  319. 
Ventre  inspiciendo  de,  writ,  ii.  85. 
Venue,  what,  x.  304. 

when  necessary,  x.  304. 
not  required,  x.  305. 
sufficiently  laid,  x.  305. 
what  is  a  proper  laying  of  the,  x.  306. 
may  be  changed,  when,  x.  370 ;  i.  82. 

in  what  cases,  x.  370. 
when  there  can  be  no  change  of,  x-  372. 
in  indictments,  v.  61. 
libel  cases,  vi.  538,  539. 
Verdict,  what,  x.  300. 

de  bene  esse,  what,  x.  307. 
privy,  what,  x.  308. 
general,  what,  x.  308. 

effect  of,  x.  303. 
special,  what,  x.  309. 

province  of  the  court  on,  x.  313. 
when  bad,  for  misbehaviour  of  a  juror,  x.  316. 
power  of  the  jury  over,  x.  315. 

when  bad,  for  misbehaviour  of  one  of  the  parties,  x.  321. 
on  informal  issue,  effect  of,  x.  323. 
immaterial  issue,  effect  of,  x.  323. 
insensible  issue,  effect  of,  x.  326. 
insufficient  issue,  effect  of,  x.  326. 
of  a,  which  does  not  find  all  that  is  in  issue,  x.  327. 
which  finds  a  thing  not  in  issue,  x.  330. 
which  varies  from  the  issue,  x.  332. 

in  assumpsit,  x.  332. 
case,  x.  334. 
covenant,  x.  335. 
debt,  x.  335. 

ejectment,  x.  337  ;  iii.  292. 
replevin,  x.  339. 
trover,  ix.  681. 
trespass,  x.  340. 
other  actions,  x.  341. 
criminal  prosecutions,  x.  342. 
where  the  words  modo  et  forma  are  contained  in  the  traverse  upon 

which  issue  is  joined,  x.  343.  _ 

which  does  not  find  the  matter  in  issue  with  certainty,  x.  34b. 

expressly,  x.  348. 
finds  a  matter  in  a  foreign  country,  x.  349. 
contrary  to  a  matter  of  estoppel,  x.  352. 
contrary  to  a  matter  of  record,  x.  351. 
contrary  to  something  confessed  or  not  denied  in  the  pleadings,  x.  35c 
what  omission  in  the  pleadings  is  cured  by,  x.  354. 

copy  of  the  issue  is  cured  by,  x.  359. 
bow  far  a,  establishes  recitals  in  a  deed,  x.  361. 
may  be  taken  after  death  of  a  sole  plaintiff,  when,  x.  363. 


728  GENERAL  INDEX. 

Verdict,  in  what  currency  to  be  given,  x.  363,  364. 
in  trover,  how  to  be  entered,  x.  364. 
when  amendable,  i.  246. 

cures  artificial  defects  in  the  declaration,  i.  247,  445. 
repugnancy  and  surplusage  do  not  vitiate,  i.  248. 
insufficiency  of  defendant's  bar,  not  cured  by,  i.  249. 
immaterial  issue,  not  cured  by,  i.  249. 
effect  of,  as  an  instrument  of  evidence,  iii.  549. 
when  contrary  to  evidence  will  be  set  aside,  ix.  599,  600,  604. 
Vergers,  who  are,  v.  480. 
Vert,  what,  ii.  762. 

Vessels,  remedy  for  injuries  to,  when  sailing,  ix.  441. 
Vested  legacy,  what,  vi.  236.     See  Legacy. 
cases  of,  vi.  245. 
remainders,  what,  viii.  313.     See  Remainders. 

may  be  taken  in  execution,  viii.  315. 
Vestura  terrce,  what  passes  by  grant  of,  iv.  530. 
Vi  el  armis,  when  required  in  a  writ  of  trespass,  ix.  501. 
matter  of  form,  ix.  504. 
requisite  in  an  indictment,  v.  85. 
Via,  what,  iv.  665. 

Vicecomes  non  misit  breve,  effect  of,  viii.  603. 
Vicars  may  make  a  lease,  when,  v.  520. 
Vicinage,  common  pur  cause  de,  ii.  265. 
Vicinetum,  what,  x.  304. 
Vicontiel  power,  when  determined,  viii.  540. 

writ  of  trespass  not  now  used,  ix.  439. 
Victuals,  what,  iv.  336. 
View,  when  granted,  v.  372. 
Viewers  fined  for  non-attendance,  v.  317,  318. 
Villain,  effect  of  calling  a  man  a,  vi.  339. 
Violation,  what,  ix.  393. 
Visitors  of  corporations,  who  are,  ii.  477. 
Vivum  mortuum,  what,  vii.  29. 

vadium,  what,  vii.  29. 
Void,  what,  x.  374. 

difference  between  voidable  and,  x.  374. 
what  acts  are  absolutely,  x.  374. 

is,  to  all  purposes,  x.  374 ;  v.  125,  128. 
acts  of  infant,  when,  x.  374. 

feme  covert,  when,  x.  374. 
probate  of  a  will  of  feme  covert  is,  x.  375. 
bond  for  a  purpose  malum  in  se,  x.  375. 

malum  prohibitum,  x.  375. 
ministerial  acts,  when,  x.  375. 
agreement  in  restraint  of  trade,  x.  376. 

for  sale  of  an  office  is,  x.  376. 
what  acts  are,  as  to  some  purposes  only,  x.  377. 
what  acts  are,  as  to  some  persons  only,  x.  378. 
acts,  by  operation  of  law,  when  made  valid,  x.  378. 
devises,  what  are,  vi.  119. 

by  uncertainty  in  description  of  thing  devised,  vi.  130. 

uncertainty  in  the  description  of  the  person  to  take,  vi.  144. 
devisee  dying  in  lifetime  of  devisor,  vi.  157. 
the  birth  of  a  child,  vi.  159. 
devise  of  after-purchased  lands,  vi.  159. 
conditions  in  a  devise,  vi.  159. 
policies,  what,  vi.  703. 
conditions,  what,  ii.  298. 
when  fraudulent  act  is,  iv.  425. 

acts  of  infant  are,  v.  125,  128  ;  x.  374. 
ecclesiastical  leases  are,  v.  549. 
Voidable,  feoffment  of  lunatic,  when,  v.  27,  28. 
acts  of  infants,  when,  v.  125. 
by  whom  avoided,  v.  13"7 
how  avoided,  v.  138. 


GENERAL   INDEX.  729 

Voidable  acts,  as  to  infants,  when  binding  on  others,  v.  134. 
leases,  how  made  good,  v.  555. 

avoided,  v.  555. 
acts,  how  made  valid,  x.  380. 
avoided,  x.  381. 
by  whom  avoided,  x.  382. 
Voluntary  agreements,  when  binding,  i.  1G5. 

conveyances,  when  fraudulent,  iv.  396.     See  Fraud. 

void  as  to  creditors,  iv.  405,  400,  410. 
escape,  what,  iv.  403.     See  Escape. 
waste,  what,  x.  4:2:2. 
Votes  for  corporate  officers,  when  good,  ii.  467. 
Voting,  charge  of  illegal,  actionable,  ix.  44. 
Vouchee,  when  parol  shall  demur  for,  v.  164. 
Toucher,  what,  iv.  294. 
Voyage,  breaking  up,  vi.  666. 
when  illegal,  vi.  703. 

W. 

Wager,  when  void,  i.  435. 

recoverable,  iv.  450. 
not,  iv.  450  ;  i.  436. 
payment  of,  when  good,  iv.  450. 
when  actions  on,  cannot  be  supported,  iv.  453. 
policy,  when  valid   vi.  707,  711. 
of  law,  what,  x.  383. 

in  what  actons  allowed,  x.  383. 
reasons  for  allowing,  x.  383. 
manner  of,  x.  384. 
when,  x.  385. 
in  what  allowed,  x.  386. 
to  whom  allowed,  x.  390. 
against  whom  allowed,  x.  391. 
when  defendant  is  not  entitled  to,  x.  392. 
Wages,  mariner  entitled  to,  vi.  601. 
may  be  forfeited,  vi.  602. 
suspended  by  capture  of  ship,  vi.  604. 
lost  by  capture  of  ship,  vi.  604. 

fund  arising  from  insurance  not  liable  for  mariner's,  vi.  605. 
effect  of  death  of  sailor  abroad  on,  vi.  607,  611. 
when  not  a  lien  on  the  ship,  vi.  608. 
rate  of,  when  no  shipping  articles,  vi.  609. 
when  allowed  pro  rata,  vi.  609. 
what  mariner  must  prove  to  be  entitled  to,  vi.  614. 
can  be  claimed  from  bankrupt's  estate,  i.  694. 
Waifs,  property  in,  viii.  41. 
Waivaria  mulieris,  what,  vii.  332. 
Waived  goods,  when  forfeited,  iv.  341. 
Waiver  of  ferfeiture,  what,  iii.  290. 
effect  of,  v.  672. 
of  lease,  what,  viii.  486. 
the  right  of  re-entry,  what,  iii.  289. 
War,  king's  prerogative  in  making,  viii.  62. 
kinds  of,  viii.  62. 
Congress  may  declare,  viii.  64. 
when  it  exists,  viii.  81. 
effect  of,  on  partnership,  vi.  590,  591. 
Warden,  power  of,  to  make  lease,  v.  480. 
Warrant,  when  void,  ii.  351. 

general,  what,  ii.  351. 

direction  of,  ii.  351. 

may  be  executed  by  private  persons,  u.  351. 

how  long  valid,  ix.  463,  489. 

effect  of  parol,  ix.  470. 

when  insufficient,  ix.  471. 

of  attorney,  when  required,  i.  487. 

Vol.  X.— 02 


730  GENERAL   INDEX. 

Warrant,  of  attorney,  given  by  several,  must  be  strictly  pursued,  i.  490. 
Warranty,  what,  x.  394. 

kinds  of,  x.  394. 

to  what  things  a,  may  be  annexed,  x.  395. 
what  clauses  in  a  deed  will  make  a,  x.  396. 
deemed  a  good,  in  a  deed,  x.  397. 

law,  x.  400. 
alterations  by  statute  respecting,  x.  403. 
effects  of,  in  a  deed,  x.  406  ;  iv.  219. 
what  use  may  be  made  of  a,  in  deed,  x.  407. 
who  may  take  advantage  of  a,  x.  409. 

liable  on  a,  x.  409. 
when  avoided,  x.  413. 
how  expounded,  x.  416. 
in  the  sale  of  personal  chattels,  x.  418. 
express,  of  personal  chattels,  x.  418. 
implied,  of  personal  chattels,  x.  418,  419. 
in  a  deed,  what,  iv.  219. 

sale  of  goods,  when  implied,  iv.  386. 
implied,  what,  i.  111. 
express,  what,  i.  114. 
when  partition  implies  a,  ii.  367. 
effect  of  covenant  of,  ii.  587. 
breach  of  covenant  of,  ii.  595. 
in  insurance,  what,  vi.  725. 
difference  between  representation  and,  vi.  725. 
to  sail  when  not  complied  with,  vi.  726. 
complied  with,  vi.  726. 
with  convoy,  vi.  727. 
neutrality,  what,  vi.  729. 
Waste,  what,  x.  420. 

on  what  subjects  committed,  x.  421. 
several  kinds  of,  x.  422. 
what  acts  shall  be  deemed,  x.  422. 
in  lands,  what,  x.  423. 

trees,  woods,  &c,  what,  x.  424. 
digging  gravel,  mines,  &c,  what,  x.  427. 
gardens,  what,  x.  428. 
orchards,  what,  x.  428. 
fish-ponds,  what,  x.  428. 
dovediouses,  what,  x.  428. 
parks,  what,  x.  428. 
meadows,  what,  x.  428. 
houses,  what,  x.  429. 
removal  of  fixtures,  when,  x.  431. 
by  ecclesiastical  persons,  what,  x.  434. 
what  is  excusable,  x.  434. 
justifiable,  x.  435. 
who  may  bring  an  action  of,  x.  438. 
against  whom  an  action  of,  may  be  brought,  x.  438,  440. 
when  executors  liable  for,  x.  447. 

an  action  of,  may  be  brought,  x.  448. 
process  and  proceedings  in,  x.  451. 
when  the  action  of,  shall  be  in  the  tenet,  x.  454. 

tenuit,  x.  456. 
judgment  in  actions  of,  x.  461. 
when  restrained  by  injunction,  x.  464,  467. 
what  relief  equity  will  give  in  cases  of,  x.  474. 
commission  of,  is  a  forfeiture  of  a  copyhold,  ii.  416. 
injunction  granted  to  prevent,  v.  197. 

leases  by  ecclesiastics  not  to  be  without  impeachment  of,  v  519. 
Watches,  duties  on,  ix.  134. 

AVater,  right  of  owners  of  land,  over  which  it  flows,  i.  120. 
course,  ejectment  will  not  lie  for  a,  iii.  272. 
pipe,  right  of  owner  of,  ix.  483. 
Way,  who  has  a  right  of,  iv.  086.     See  Hig7uvays. 


GENERAL    INDEX.  731 

Way,  right  of,  how  to  bo  used,  iv.  688. 

extinguished,  iv.  688. 
forfeited,  iv.  690. 
of  necessity,  what,  iv.  688. 

when  to  be  made,  iv.  689. 
by  prescription,  iv.  690,  691. 

whom  to  be  repaired,  iv.  691. 
when  it  raises  a  presumption  of  a  grant,  iii.  618. 
effect  of  granting  lands  bounded  by  a,  ii.  557. 
of  necessity,  effect  of  disturbance  of,  ii.  586. 
breach  of  warranty  of,  ii.  589. 
Wearing  apparel  may  be  distrained,  when,  iii.  173. 
Weight,  when  not  required  to  be  stated  in  a  declaration,  vii.  513. 

of  evidence,  effect  of,  on  verdict,  ix.  587. 
Weights,  use  of  false,  when  indictable,  v.  55. 
Welch  mortgage,  what,  vii.  31. 

when  payable,  vi.  380. 
Whale-fishery,  rules  respecting,  vii.  455. 
Wharfinger,  when  liable,  ii.  153. 
Widow's  chamber  in  London,  what,  iii.  41. 
may  be  a  witness,  when,  iii.  478. 

distrain,  when,  iii.  165. 
to  what  entitled,  iv.  84. 
is  not  next  of  kin  to  husband,  vi.  188. 
is  a  good  addition,  vii.  11. 
Wife,  who  is,  ii.  13. 

subjection  of,  to  her  husband,  ii.  14. 
when  not  under  his  power,  ii.  14. 
incapacities  of,  as  to  civil  rights,  ii.  15. 
no  political  incapacities  of,  ii.  16. 
may  bring  an  appeal,  i.  294. 

contract,  when,  i.  154 ;  ii.  49  ;  viii.  420. 
act  as  an  attorney  in  fact,  i.  520, 
be  a  purchaser,  when,  ii.  54. 
execute  a  mere  authority,  ii.  55,  75. 
trade  alone,  when,  ii.  65. 
be  a  witness,  when,  iii.  475. 

not,  iii.  475  ;  ii.  35. 
tenant  in  common  with  her  husband,  v.  242. 

others,  v.  242. 
one  of  several  joint-tenants,  v.  242. 
endowed  of  tenancy  in  common,  v.  240. 
a  devisee  of  her  husband,  vi.  8. 
make  a  will,  when  authorized,  vi.  7. 
cannot  make  an  agreement  with  her  husband,  ii.  5 1. 
appoint  an  attorney,  ii.  56. 
be  endowed  of  joint-tenancy,  v.  240. 
make  a  will,  when,  vi.  7. 
estate  of,  real,  how  far  vested  in  husband,  ii.  16. 
personal,  vests  in  husband,  ii.  16,  21. 
separate,  how  managed,  ii.  71. 
profits,  when  belonging  to  husband,  ii.  73. 
who  is  entitled  to  legacy  to,  during  coverture,  vi.  309. 

when  divorced,  vi.  310. 
who  takes  under  a  bequest  to  my  beloved,  vi.  190. 
provision  for,  when  secured,  ii.  69. 
equity  of,  what,  ii.  69. 

when  defeated,  ii.  70. 
who  entitled  to  redeem  a  mortgage  on,  vii.  80. 
when  it  passes  to  assignees  of  her  bankrupt  husband,  i.  725. 
considered  as  a  feme  sole,  when,  ii.  04. 
responsible  for  her  contracts,  after  divorce,  when,  ii.  65. 
acts  of,  how  far  revoked  by  marriage,  ii.  30. 
debts  of,  how  to  be  paid,  ii.  33. 
acquiescence  of  husband,  does  not  bind  her,  ii.  53. 
when  a  disseisoress,  ii.  52. 


732  GENERAL   INDEX. 

Wife,  when  responsible  for  her  criminal  acts,  ii.  35. 
not  responsible,  ii.  34. 
turning  her  out  of  doors  by  husband,  eifect  of,  ii.  44. 
ciuelty  to,  effect  of,  ii.  44. 
eifect  of  deed  by,  viii.  420. 

lease  by  husband  and,  v.  443. 
•when  advertising  of,  is  not  a  libel,  vi.  341. 
'a  part  by  custom  of  London,  what,  iii.  47. 
must  be  joined  in  an  action,  when,  ii.  56,  01. 

plead  in  abatement,  when  sued  alone,  ii.  61. 
Wild  animals,  who  is  entitled  to,  viii.  25. 

Wilful,  when  this  word  requisite  in  an  indictment  for  perjury,  vii.  438. 
Will,  what,  x.  478,  479 ;  vi.  5. 
origin  of,  vi.  5. 

difference  between  testament  and,  x.  479. 
what  paper  will  amount  to  a,  x.  480. 
who  may  make  a,  x.  481,  484. 

infant,  when,  x.  481 ;  vi.  8. 
feme  covert,  when,  x.  481 ;  vi.  7. 
lunatic,  when,  x.  482. 
non  compos,  when,  x.  483. 
drunkard,  when,  x.  483. 
alien  enemy,  when,  x.  484. 
traitor,  when,  x.  484. 
suicide,  when,  x.  484. 
heretics,  when,  x.  484. 
requisites  of,  x.  485. 

1.  a  legal  testator,  x.  485. 

2.  a  devisee,  x.  485. 

3.  an  intention  to  make  a,  x.  485. 

4.  testator  must  be  free,  x.  486. 

5.  must  be  in  form,  x.  487. 
kinds  of,  x.  487. 

in  writing,  x.  487. 

1.  to  pass  lands,  x.  488. 

2.  to  pass  goods,  x.  514 

3.  what  is  proof  of,  x.  517. 
nuncupative,  x.  529. 

nature  and  effect  of,  x.  532. 
how  construed,  x.  533. 
avoided,  x.  540. 

revoked,  x.  541.     See  Revocation. 
form  of  proving,  iv.  50. 
what  words  in  a,  pass  a  fee,  vi.  14. 
what  are  leases  at,  v.  622,  623. 
does  not  operate  as  a  release,  viii.  251. 
distinction  between  a  deed  and  a,  viii.  383. 
Wine,  it  is  a  fraud  to  sell  corrupted,  iv.  383. 
Wisconsin,  courts  in,  ii.  820. 
Witchcraft,  what,  iv.  635. 

how  punished,  iv.  635,  636. 
Witen-agemot,  how  constituted,  ii.  617. 
Withernam,  when  to  be  issued,  viii.  541. 
derivation  of,  viii.  541. 
form  of  writ  of,  viii.  541. 
how  cattle  taken  in,  may  be  used,  viii.  542. 
is  a  mesne  process,  viii.  542. 
both  plaintiff  and  defendant  entitled  to,  viii.  542. 
"  Without  leaving  issue,"  meaning  of,  vi.  117. 
children,  meaning  of,  vi.  117. 
defalcation,  effect  of,  vi.  795. 
Witness,  wh  ;  xas.y  be,  iii.  473. 

slave,  when,  iii.  473. 
infant,  iii.  473. 
heathen,  iii.  474. 
lunatic,  when,  iii.  474. 


GENERAL   INDEX.  733 


Witness,  who  may  be,  party,  when,  iii.  474,  4S2. 

husband,  iii.  475. 
wife,  iii.  475. 
widow,  iii.  478. 
judge,  iii.  479. 
juror,  iii.  479. 
accomplice,  iii.  485. 
inhabitant,  when,  iii.  500. 
to  a  will,  x.  491,  493,  497,  517  to  529. 
who  cannot  be,  party,  iii.  474,  482. 

interested  person,  iii.  488  502. 
counsel,  iii.  480. 
convict,  iii.  486. 

party  to  negotiable  paper,  iii.  503. 
juror  to  impeach  his  verdict,  v.  393. 
number  of,  required,  iii.  507. 

in  treason,  ix.  431. 
to  a  will,  x.  500. 
how  compelled  to  attend,  iii.  508. 
examination  of,  iii.  512. 
depositions  of,  iii.  513. 
not  bound  to  criminate  himself,  iii.  514. 
not  liable  in  slander,  iii.  515. 

may  look  at  writing,  and  refresh  his  memory,  iii.  516. 
how  examined  in  chancery,  iii.  517. 

criminal  cases,  iii.  561. 
attachment  against,  for  contempt,  i.  470. 
when  protected  while  attending  court,  ii.  633. 

from  answering,  iv.  458. 
privilege  of,  viii.  170. 

when  entitled  to  privilege,  how  discharged,  viii.  175. 
when  attesting,  must  be  produced,  viii.  596,  597. 
"Woman,  when  waived,  vii.  332.     See  Wife. 
Wood,  when  tithable,  x.  17. 
Woods,  what  will  pass  by  a  grant  of,  iv.  530. 
Woodland,  when  it  is  no  waste  to  clear,  x.  438- 
Wool,  duties  upon,  ix.  117. 

fells,  duties  on,  ix.  117. 
torn  from  sheep,  when  larceny,  iv,  177. 
when  tithable,  x.  250. 
Words,  when  they  will  pass  a  fee,  vi.  14. 

of  inheritance  not  required  to  pass  a  fee,  vi.  15. 
introductory,  effect  of,  vi.  28. 
meaning  of  give,  vi.  16. 
devise,  vi.  16. 
transfer,  vi.  17. 
paying,  vi.  21. 
estate,  vi.  23,  25,  47. 
property,  vi.  23,  27. 
interest,  vi.  24,  27. 
improvement,  vi.  24. 
all  I  possess,  vi.  25,  28. 
temporal  goods,  vi.  25. 
any  other  thing,  vi.  26. 
testamentary  estate,  vi.  26. 
personal  estate,  vi.  27,  137,  192. 
effects,  vi.  28,  192,  194. 
perpetual,  vi.  28. 
heirs,  vi.  184. 

heir  of  the  body,  vi.  44,  46. 
heir  male,  vi.  44. 
issue,  vi.  46,  156. 
dying  without  issue,  vi.  113. 
without  children,  vi.  117. 
without  leaving  issue,  vi.  117. 
appurtenances,  vi.  136. 

6  y 


734  GENERAL   INDEX. 

Words,  meaning  of,  all  my  B  F  estate,  vi.  135 
legacy,  vi.  137. 
premises,  vi.  140. 
her  part  aforesaid,  vi.  140. 

perpetual,  vi.  143. 

posterity,  vi.  144. 

farm,  vi.  143. 

successively,  vi.  156. 

child,  vi.  150. 

son,  vi.  156. 

not  doubting,  vi.  166. 

requested,  vi.  166. 

recommend,  vi.  166. 

will  and  desire,  vi.  166. 

entreat,  vi.  166. 

equally,  vi.  179. 

poor  relations,  vi.  181. 

children,  vi.  184,  185. 

grandchildren,  vi.  184. 

next  heir,  vi.  185. 

servants,  vi.  186. 

of  her  own  family,  vi.  186. 

family,  vi.  187. 

next  of  kin,  vi.  188. 

my  beloved  wife,  vi.  190. 

now,  vi.  191. 

other  things,  vi.  192. 

all  my  goods  and  chattels  in  Suffolk,  vi.  192. 

goods,  vi.  192. 

property,  vi.  192,  193. 

chattels,  vi.  192. 

things,  vi.  192. 

movable  goods,  vi.  193. 

money,  vi.  193,  297. 

household  goods,  vi.  193. 
stuff,  vi.  194. 
furniture,  vi.  194. 

plantation,  vi.  194. 

stock  of  cattle,  vi.  194. 

upon  a  farm,  vi.  194. 
in  iron  works,  vi.  194. 
utensils,  vi.  194. 
bonus,  vi.  194. 
securities  for  money,  vi.  195. 
medals,  vi.  195. 
debts,  vi.  195. 
balance,  vi.  195. 
linen,  vi.  195. 
ground-rents,  vi.  195. 
cabinet  of  curiosities,  vi.  196. 
bona,  vi.  196. 
jewels,  vi.  196. 

support  and  maintain,  vi.  197. 
female  slave  and  her  increase,  vi.  197,  198. 
silver  tea-kettle  and  lamp,  vi.  197. 
at,  vi.  264,  206. 
if,  vi.  264. 
provided,  vi.  264. 
in  case  of,  vi.  264. 
when,  vi.  264. 
as  soon  as,  vi.  264. 
from  and  after,  vi.  264,  266. 
unmarried,  vi.  267. 
and,  vi.  267  :   x.  539. 
or.  \i.  267  :    x.  539. 
survivors,  vi.  i     . 


GENERAL  INDEX.  735 

Words,  meaning  of,  they  paying,  vi.  271. 

if  they  behave  themselves  dutifully  to  their  mother,  vi.  277. 

at  and  from,  vi.  650,  652,  65  I. 

from  her  arrival,  vi.  653. 

warranted  to  depart  with  convoy,  vi.  653. 

from  New  York  to  Barbadoes  and  a  market,  vi.  655. 

forwards  and  backwards,  vi.  657. 

in  this  voyage,  vi.  658. 

without  defalcation,  vi.  795. 

assigns,  vii.  61. 

eregimus,  vii.  290. 

concessimus,  vii.  290. 

constituimvs,  vii.  290. 

Mr.,  vii.  438. 

Mrs.,  vii.  438. 

piratical,  vii.  440. 

divers  goods  and  chattels,  vii.  515. 

&c,  vii.  525. 

one  hundred  articles,  vii.  515. 

ne  dona  pas  par  le  fait,  vii.  531. 

modo  et  forma,  vii.  531. 

person,  x.  126. 

seised,  x.  126. 

hereditaments,  x.  126. 

lawful  seisin,  state  and  possession,  x.  127. 

impeachment  of  waste,  x.  467. 

when,  viii.  389. 

then,  viii.  389. 

if,  viii.  389. 

acqtiitto,  x.  396. 

defendo,  x.  396. 

concessi,  x.  396,  400. 

demisi,  x.  396. 

grant,  bargain,  and  sell,  x.  396. 

seised  of  an  indefeasible  estate  in  fee  simple,  x.  397. 

dedi,  x.  400. 

assigns,  x.  410. 
cannot  be  construed  into  an  assault,  i.  371. 
effect  of  general,  viii.  155. 
bona  et  catalla  felonum,  viii.  155. 
a  tempore  plenaz  cetatis,  viii.  155. 
totum  statum  suum,  viii.  155. 
technical,  when  not  required,  viii.  327. 
which  make  a  condition,  what,  viii.  395. 
descriptive  of  time  and  manner,  what,  viii.  395. 
in  default  of  issue,  viii.  41  >4. 
when  actionable,  ix.  32,  33. 
are  actionable  when  charging  a  crime,  ix.  33. 

contagious  distemper,  ix.  45. 
disgraceful  to  an  officer,  ix.  45. 

a  tradesman,  ix.  4.^,  "2. 
spoken  falsely  as  to  his  character,  ix.  55. 
plaintiff  has  sustained  special  damage,  ix.  55. 
construction  of  slanderous,  ix.  60. 
when  construed  in  mitiori  sensu,  ix.  61. 
time  of  publication  of,  ix.  60. 
place  of  publication  of,  ix.  62. 
language  in  which,  are  published,  ix.  62. 
occasion  of  the  publication  of,  ix.  63. 
intention  of  the  publication  of,  ix.  64. 
when  published  in  course  of  justice,  ix.  66. 
in  past  or  future  tense,  when  slanderous,  ix.  68. 
how  far,  must  be  affirmative  to  be  slanderous,  ix.  69. 
certain  to  be  slanderous,  ix.  71.  72. 
when  not  to  be  construed  in  mitiori  sensu,  ix.  76. 
adjective,  how  construed,  ix.  78. 


736  GENERAL  INDEX. 

Words,  importing  only  an  intent,  how  construed,  ix.  79. 
repugnancy  of,  effect,  ix.  80. 
disjunctive,  effect  of,  ix.  80. 
copulative,  effect  of,  ix.  80. 

when  an  action  lies  for  repeating  slanderous,  ix.  81. 
effect  of  subsequent,  ix.  83. 
declaration  for,  ix.  84. 

what  may  be  pleaded  in  justification  of,  ix.  97. 
when  spiritual  courts  have  jurisdiction  of  slanderous,  ix.  101. 
sufficient  to  create  a  grant,  iv.  519. 
Worms,  loss  of  ship  by,  is  not  a  peril  of  the  sea,  vi.  662. 
Wreck,  what,  viii.  35  ;  ii.  737. 
prerogative  of,  viii.  34. 
who  is  entitled  to,  viii.  117,  157. 
Wrecked  goods,  no  duties  on,  ix.  129. 
Writ  of  annuity,  remedy  by,  viii.  495. 

error,  what,  iii.  320.     See  Error. 

when  an  audita  querela  lies,  and  not  a,  iii.  322. 
may  be  abated,  when,  i.  15. 
nonsuited,  vii.  218. 
when  a  supersedeas,  ix.  284,  288. 
to  be  a  supersedeas  must  be  allowed,  ix.  288. 
there  must  be  bail,  xi.  289. 
must  be  proceeded  in  without  delay,  ix.  289. 
identate  nominis,  vii.  360. 

partitione  facienda,  when  it  lies,  ii.  364 ;  v.  290. 
proprietate  probanda,  viii.  548. 

right,  when  a  new  trial  will  be  granted  on  a,  ix.  624. 
second  deliverance,  when  a  supersedeas,  ix.  283. 
scire  facias,  form  of,  viii.  619. 

requisites  of,  viii.  619. 
trespass,  form  of,  ix.  501. 
ventre  inspiciendo,  when  awarded,  ii.  85. 
when  defect  may  be  pleaded  in  abatement,  i.  20. 
form  of,  how  settled  in  chancery,  ii.  682. 
Writer  of  a  libel  how  far  guilty,  vi.  354. 
Writing,  in  what,  a  will  may  be,  x.  490. 
Written  scandal,  what,  vi.  338. 
Wrong,  king  can  do  no,  viii.  81. 

Y. 

Year  and  day,  rules  respecting,  vi.  363. 
Years,  leases  for,  what,  v.  612,  613. 

from  year  to,  what,  v.  625. 
Yeas  and  noes,  how  given,  ii.  674. 
Yeoman  is  a  good  addition,  vii.  11. 

Yielding  and  paying,  effect  of  these  words,  ii.  557  ;  v.  434. 
Young  of  animals,  when  the  subject  of  larceny,  iv.  178,  179. 

tithable,  x.  24. 
Younger  children,  who  shall  take  a  legacy  given  to,  vi.  183. 


THE  END. 


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